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7 Harv. Negotiation L. Rev. 109
Harvard Negotiation Law Review
Spring 2002
Mindfulness in the Law and ADR
REFLECTIONS ON THE POTENTIAL GROWTH OF MINDFULNESS MEDITATION IN THE LAW
Douglas A. Codigaa1
Copyright © 2002 Harvard Negotiation Law Review; Douglas A. Codiga
I. Introduction
In his article, “The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students,
Lawyers and their Clients,”1 Professor Leonard Riskin candidly states that he does not know whether recent efforts to
introduce mindfulness meditation to lawyers and law students are “harbingers of a larger movement or a few flashes in a few
pans.”2 If the potential benefits of mindfulness meditation described by Professor Riskin are real, and if the efforts to bring
these benefits to the legal profession signal a larger movement, then mindfulness meditation may become a significant force
for positive change in legal education and the practice of law. This potential will be lost, however, if these efforts are indeed
merely a few isolated, if inspired, ventures. It is therefore worthwhile to better understand key misconceptions about
mindfulness meditation that may limit its appeal to lawyers.
In this essay, I suggest that recent efforts to introduce mindfulness to the legal community may continue to be little more than
“a few flashes in a few pans” unless three potential misconceptions about mindfulness meditation, lawyering and the
teachings of Buddhism are firmly laid to rest. First, lawyers must understand that there is nothing mystical or otherworldly
about mindfulness meditation.3 Both the theory and practice of mindfulness meditation are *110 founded on, and compatible
with, reason, analysis, and skepticism. Thus, attorneys who practice mindfulness meditation each morning before going to the
office, and at brief moments throughout the workday, are training their minds in a manner consistent with the use of reason
and legal analysis in practicing law. Second, it must be clear that the practice of mindfulness meditation requires no
commitment to Buddhism.4 In his article, Riskin explains that although mindfulness meditation is based on the teachings of
the Buddha, it can be undertaken with no commitment to Buddhist doctrine or ritual.5 This is true, as far as it goes, but for a
lawyer considering mindfulness meditation this may not go far enough. It must be clear that there is no inherent conflict
between mindfulness meditation and pre-existing religious beliefs and orientations, and that attorneys who go to church or to
synagogue can also integrate mindfulness meditation into their professional and religious lives with little or no difficulty.
Finally, it must be equally clear that mindfulness meditation offers something more than stress reduction and improved
lawyering skills. Interested lawyers must appreciate that mindfulness meditation is a proven method for cultivating deeper
insights that touch upon the whole of a lawyer’s life. 6 For many lawyers, there must be convincing proof of the practical
benefits of mindfulness meditation before they will sit down in a quiet room and give it a try. These practical
benefits--whether stress reduction or improved listening and negotiating skills--are tremendously important. Yet they may not
be enough to stimulate sustained and widespread interest in mindfulness meditation, especially among already successful
lawyers who may be skeptical about stress reduction methods and wary of what they perceive as another top-down
professionalism initiative.
My purpose in this essay, then, is to build on Riskin’s path-breaking and astute exposition of mindfulness meditation in the
law by clarifying these three potentially limiting views about the relationship between mindfulness meditation, lawyering,
and the teachings of Buddhism. I offer these reflections as a lawyer and law professor with relevant experience in law and
contemplative practice. This experience includes extensive involvement with the Law Program of the Center for
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Contemplative Mind in Society, a non-profit *111 organization that has hosted a number of mindfulness meditation retreats
for lawyers and law students over the past several years, 7 and personal experience as a law professor, lawyer, and former law
student who has maintained a regular meditation practice over the last fifteen years. 8 Although my comments in this essay
may be of interest to law students and law professors, they are directed primarily to practicing lawyers, especially those who
integrate methods of alternative dispute resolution (“ADR”) and negotiation in their law practices. There are strong
indications that lawyers who practice ADR may be more open than others to considering the possible value of mindfulness
meditation.9
II. Mindfulness Meditation and Legal Reasoning
In my work with the Contemplative Law Program, I have raised the topic of contemplative awareness and meditation with a
number of lawyers. Although many are receptive and genuinely interested in learning more about meditation, the dominant
preconception I encounter is that meditation and lawyering are startlingly incongruous activities. I have found that the root of
this reaction is the perception *112 that meditation involves what may be described as “closing your eyes and escaping to an
imaginary place far removed from daily experience.”
In his article, Riskin depicts mindfulness meditation as not only very different from this but also as something that may
improve one’s lawyering skills.10 Nevertheless, lawyers may remain doubtful about mindfulness meditation--perhaps rightly
so--unless they are convinced that there is nothing otherworldly about it, and that practicing mindfulness meditation is
entirely consistent with the use of reason in the law. Simply put, mindfulness meditation must be thoroughly demystified to
avoid this potential barrier to more widespread acceptance.
The Buddhist teachings underlying mindfulness meditation make it clear that mindfulness meditation is this-worldly,
discourages mystical states of mind, and is compatible with the use of reason. 11 Recourse to these teachings is appropriate
because *113 mindfulness meditation draws heavily from the Buddhist tradition, 12 a large body of teachings exists,13 and as
Riskin reports, mindfulness meditation has been used extensively in early efforts to date to introduce meditation to the legal
community.14
A. Mindfulness Meditation is Consistent with Legal Reasoning
The use of reason in the law, or legal reasoning,15 is fundamental to the study and practice of law in our legal system.
Although this proposition provokes little controversy, the nature and meaning of legal reasoning is subject to extensive
academic debate.16 This debate reaches far beyond the scope of this essay. For purposes of this discussion, I will broadly
define legal reasoning as the use of analogical, deductive, moral or other forms of reasoning to apply legal rules to facts to
obtain legal results. Stated otherwise, legal reasoning is the general process of deriving inferences from the general
application of general propositions to particulars.17 Of significance here is that this *114 definition of legal reasoning does
not equate legal reasoning with scientific syllogistic logic.18
Even this relatively non-controversial definition of legal reasoning, however, may strike many lawyers as being at odds with
the common perception that all meditation involves the deliberate cultivation of otherworldly, mystical states of mind. These
otherworldly mental conditions, it is thought, seek to leave behind or transcend the world of ordinary experience and are the
result of deliberate efforts in meditation to supplant ordinary experience with fantasy and paranormal experiences. The sacred
is considered not to be immanent, or found within daily life experience, but transcendent or something beyond the
here-and-now. This understanding accords with the general perception that meditation is a means of slipping the bounds of
reason.19
Buddhist teachings, however, mark the essential compatibility of mindfulness meditation and reason through important
attitudes and themes such as intellectual and analytical ability, empiricism and experiential knowledge, and skepticism.
Although one does not think and reason while practicing mindfulness meditation, a keen intellect and sharp analytical
abilities are valued. The early canonical teachings emphasize that the purpose of meditation is to cultivate mental qualities
such as concentration, awareness, intelligence and the analytical faculty.20 Meditation students are encouraged to simply
observe, watch and examine their mental phenomena, and to refrain from criticizing or discriminating. “You are . . . a
scientist. . . . Thus *115 you become detached and free, so that you may see things as they are.”21
Buddhist teachings similarly place high value on verifying religious experience through empirical knowledge. Insights must
be experienced and not taken on faith. This “scrupulous empiricism” in Buddhism is compatible with the pragmatic tenor of
Western culture.22 The Buddha constantly urged his followers to never adopt his teachings uncritically, but to fully
investigate them.23 He insisted that his disciples test everything he taught them against their own experience and take nothing
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on hearsay.24 Skepticism toward Buddhist teachings was sanctioned and even encouraged.25
B. Mindfulness Meditation is Not Otherworldly or Mystical
Although it differs radically, lawyers new to mindfulness meditation may conflate it with the conception that meditation is
otherworldly and mystical. There may be several reasons for the persistence of this view of meditation. Lawyers, like others
in society, may simply lack exposure to basic ideas about what meditation is. 26 The word “meditation” is broad enough to
accommodate several *116 different meanings.27 The media may perpetuate the view of meditation as otherwordly and
mystical. The popularity of various forms of yoga, some of which involve meditation, may contribute to this perception.
Whatever the cause, for many lawyers the act of “gathering in dimly lit rooms”28 to meditate is considered the polar opposite
of sitting down in a brightly lit office or courtroom to do legal work. 29
Buddhist teachings underlying mindfulness meditation indicate that the goal of mindfulness meditation is to “see the nature
of things as they are,”30 however, rather than to cultivate a mystical or otherworldly mental condition. As Walpola Rahula
has explained, mystic states cultivated in meditation that are “mind-created, mind-produced, conditioned . . . have nothing to
do with Reality, Truth, Nirvana.”31 Mindfulness meditation, a core discipline of the Buddhist path, rejects the cultivation of
mystical, otherwordly states of mind as the goal of meditation practice. Contemporary American teachers of Buddhism echo
this skepticism toward mystical powers:
Astral travel, psychokinesis, and telepathy are just some powers that are often described as being developed through spiritual
practice. Astral travel, though, will not end your suffering, and even the greatest psychic healer must eventually get sick and
die . . . . Omniscience and even omnipotence are associated with some great saints and yogis and hence many people expect
these as necessary results of spiritual development . . . . Not only are these powers different from wisdom, but they often
become blocks to insight and understanding.32
In short, Buddhist teachings--from those of Siddhartha Gautama in India 2500 years ago to contemporary American
teachers--clearly do *117 not support the common perception that meditation involves mystical, otherworldly experience.
Although mindfulness meditation can be practiced with little or no knowledge of these teachings, they should help to dispel
the doubts of lawyers concerned that mindfulness meditation involves, in essence, “closing your eyes and escaping to an
imaginary place far removed from daily experience.”
III. Mindfulness Meditation Requires No Commitment to Buddhism
Lawyers may also be unwilling to try mindfulness meditation unless it is clear that it is compatible with pre-existing religious
beliefs and orientations, and requires no commitment to Buddhism.33 Thus far, the relationship between mindfulness
meditation and Buddhism has been deemphasized in efforts to introduce mindfulness to the legal community. Although there
are valid and useful reasons for this,34 the lack of clarity may make some lawyers uncomfortable and reluctant to try
mindfulness meditation. Buddhist teachings, however, clearly demonstrate that it is compatible with other religious
orientations. Moreover, mindfulness meditation also does not conflict with other religious traditions insofar as it is a part of
an emerging form of agnostic or secular Buddhism that favors reason over faith and places little or no emphasis on religious
beliefs, Buddhist or otherwise.
*118 A. Teachings of Buddhism
Buddhist teachings affirm that subscribing to Buddhist beliefs is not a prerequisite to practicing mindfulness. This is
consistent with the emphasis on individual effort in Buddhist teachings.35 The goal in Buddhist thought is wisdom, and this
wisdom is not necessarily achieved through belonging to a particular group, including a Buddhist group. As Robert A.F.
Thurman explains:
[I]n Buddhist . . . thought in general, delusion is the root cause of suffering, and wisdom is the antidote for delusion, hence
the root cause of liberation. Wisdom . . . is not accumulated instrumental knowledge, but is a special kind of super-knowing,
a knowing by becoming the known, by transcending the subject-object dichotomy. Thus, liberation is achieved not by
believing, not by participating in any ceremony or belonging to any group, but by understanding in the deepest possible
way.36
A person practicing Buddhism can therefore practice other faiths without violating any principle of Buddhism. 37 As one
scholar explains, “[a] person’s theology was a matter of total indifference to the Buddha. To accept a doctrine on somebody
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else’s authority was, in his eyes, an ‘unskillful’ state, which could not lead to enlightenment, because it was an abdication of
personal responsibility.”38 In short, the Buddha “saw no virtue in submitting to an official creed.”39
The compatibility of Buddhism and mindfulness meditation with other religious traditions is further reflected in the number
of publications devoted to this topic and in the experience of many who have tried mindfulness meditation. There is a large
and growing number of books and publications examining and relating Buddhism to Christianity40 and Judaism.41 These
materials suggest the Buddhist tradition can be practiced alongside other religious traditions. In *119 addition, mindfulness
meditation can be and has been practiced by many who do not embrace Buddhism as a religion. For example, the Chicago
Bulls are not a Buddhist organization, even though their former head coach, Phil Jackson, is widely known to incorporate
mindfulness in his coaching exercises.42 Riskin chronicles a host of law students, professors and attorneys who have taken up
mindfulness meditation in this manner.43 And to date the Law Program has hosted five law retreats led exclusively by
teachers of Buddhism who taught mindfulness meditation from the Buddhist tradition to individuals with a variety of
religious orientations.
The Law Program endorses and uses mindfulness meditation in part because lawyers who participate in its law retreats can
practice it without making a commitment to becoming a Buddhist. The Center is not a Buddhist organization. 44 It employs a
variety of contemplative practices to encourage contemplative awareness in business and academics. The goal of the Center
is to:
*120 integrate contemplative awareness into contemporary life in order to help create a more just, compassionate, and
reflective society. The Center teaches contemplative practice at retreats and meetings in secular settings to help people
change the way they understand the world and move toward more compassionate action . . . . It is the Center’s hope that these
actions will increase the visibility and reveal the value of contemplative practice to greater society. 45
In a correspondingly broad manner, the Center defines “contemplative practice” as:
an attempt to quiet the mind in the midst of the stress and distraction of everyday life in order to cultivate a personal capacity
for deep concentration and insight. Although usually practiced in silence, examples of contemplative practice include not
only sitting in silence but also many forms of single-minded concentration, including meditation, contemplative prayer,
mindful walking, focused experiences in nature, yoga and other contemplative physical or artistic practices. We also consider
various kinds of ritual and ceremony designed to create sacred space and increase insight and awareness . . . to be forms of
contemplative practice.46
The Center has used mindfulness meditation, which can be practiced with no particular commitment to Buddhism, in each of
the five law retreats to date because it is consistent with the Center’s goals and its encompassing definition of contemplative
practice.47
*121 B. Rise of Agnostic or Secular Buddhism
Mindfulness meditation also does not conflict with other religious traditions insofar as it is a part of an emerging form of
agnostic or secular Buddhism that even more strongly favors reason over faith and places little or no emphasis on religious
beliefs, Buddhist or otherwise. In recent years, proponents of “Buddhism without beliefs” have written about and promoted
what they term an “agnostic” form of Buddhism that, in their view, is consistent with but does not rely on Buddhist doctrine
or ritual.48 This form of Buddhism is claimed to be more accessible to Westerners and more consistent with the Western
canon and its reliance on reason and logic. This view is also reflected in the Dalai Lamas’s recent efforts to develop and
promote an ethical system that is based on reason and not religious dogma. 49
This perspective suggests two things to lawyers who may consider practicing mindfulness meditation. First, there are those
within the Buddhist tradition (from which mindfulness meditation is derived) who depict the tradition as one that radically
de-emphasizes beliefs. This lack of emphasis on beliefs further reduces potential conflicts between practicing mindfulness
meditation and following other religious paths. Second, the movement toward a “Buddhism without beliefs” signals the rise
of new forms of religiosity in the west that are amenable to spiritual practice that may not be tied to specific religious
traditions.50
IV. Mindfulness Meditation and the Cultivation of Insight
A friend once asked Gandhi if his aim in settling in a poor rural village in India to serve the villagers as best he could was
purely humanitarian. Gandhi replied, “I am here to serve no one else but myself, to find my own self-realization through the
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service of these *122 village folk.”51 As Robert Aitken has explained, this question--which was not asked without
malice--goes to motivation.52 The questioner voices the conventional suspicion of humanitarian generosity, and implies that
Gandhi is really serving his own needs by behaving altruistically. Gandhi replies from an unconventional point of view. As
Aitken notes, “[f]or the questioner, humanitarianism seems unrealistic, and in effect, Gandhi acknowledges this, agreeing in
order to make a deeper point.”53 Gandhi’s deeper point is that the villagers clearly are serving him, and that he is finding his
own self-realization through his work with the villagers.
Gandhi’s response is instructive for lawyers who are interested in taking up mindfulness meditation but who may
misapprehend it as simply a tool for stress reduction or improved listening and negotiation skills. While mindfulness
meditation may provide these and possibly other pragmatic benefits, it also offers something more: the chance to cultivate
self-realization through serving clients and practicing the law.54 The deeper appeal of mindfulness meditation to lawyers is its
potential to connect the day-to-day work of lawyering with insights that provide lasting meaning into perennial questions
about human existence.55 Like Gandhi serving the villagers, these insights come not from metaphysical speculation but
through mindful legal work grounded in regular meditation practice. For mindfulness meditation to be more widely embraced
throughout the profession, this dual potential--pragmatic benefits plus deeper insights--must be clearly understood and
appreciated.
*123 This deeper potential of mindfulness meditation comes into relief when mindfulness meditation is contrasted against the
various “vectors” of the comprehensive law movement described by Riskin. 56 Although it is reasonable to conclude that each
of these vectors affords some measure of insight, and may incorporate methods similar to mindfulness meditation, none of
these vectors is primarily a contemplative practice. Mindfulness meditation, in contrast, is not a vector of the comprehensive
law movement, but a contemplative practice drawn from a wisdom tradition (Buddhism) that has taken root in the larger,
non-legal society. While many non-lawyers practice mindfulness meditation, only lawyers and those in the law are likely to
devote effort to therapeutic jurisprudence, collaborative law, or any of the other vectors. The potential of mindfulness
meditation to touch the whole of a lawyer’s life sets it apart from these vectors, and suggests its unique potential.
Similarly, it must be clear to interested lawyers that the potential depth afforded by mindfulness meditation resonates with
deeper ideals in the law such as justice and equality. One of the aims of the Contemplative Law Program is to allow lawyers
to reconnect with ideals of social and environmental justice through contemplative practice. Such lofty ideals, which may
have motivated one to enter law school, can grow dormant on entering the profession. Stress reduction methods and
improved listening and negotiating skills, although valuable, may be perceived as lacking the depth and gravitas that
corresponds to the recovery of these ideals.
V. Conclusion
Oliver Wendell Holmes remarked long ago that “the only cosmic possibilities I know anything about are the actualities.”57
For today’s lawyers, mindfulness meditation provides a straightforward, practical method for the essential work of recovering
deep meaning amidst the “actualities” of a busy work life, while at the same time delivering *124 practical benefits for
individual well-being and improved lawyering skills. Riskin’s article provides a comprehensive and valuable overview of this
exciting development in the law. He has shown that a number of lawyers and law students have already embarked on an
exploration of law and contemplative practice, and that it is reasonable to conclude that their efforts will continue to yield
powerful practical benefits.
Yet lingering doubts about the implications of taking up mindfulness meditation may prevent interested lawyers from delving
further into this topic. It is possible that the current blossoming of interest in mindfulness meditation will indeed turn out to
be little more than “a few flashes in a few pans,” yielding altogether little light. Thus, it must be clear to interested attorneys
that mindfulness meditation is not mystical or otherworldly, that one need not become a Buddhist, and that, ultimately,
mindfulness meditation allows for the cultivation of deep insights into fundamental questions about human life--in addition to
stress reduction and improved lawyering skills.
A young law student’s struggle to reconcile contemplative practice and life as a lawyer points to the ultimate goal of current
efforts to bring mindfulness meditation into the law. Following a period of silent meditation at a recent law retreat, the
student shared with the other law retreat participants that he was puzzled over how to “apply” contemplative practice to his
life as a future lawyer. As a lawyer, how do you apply mindfulness meditation to your work? His epiphany was the
realization that the goal is the reverse of this. Rather than to apply mindfulness meditation as another skill or ability, the goal
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is to fundamentally establish oneself in mindful awareness and then practice law from that place. This opportunity and
challenge--for it is both--lies at the heart of current efforts to integrate law and contemplative practice by exposing lawyers to
the practice of mindfulness meditation.
Footnotes
a1
Visiting Assistant Professor, William S. Richardson School of Law, University of Hawaii Manoa; M.A., 1991, Religion (Asian
Religions), University of Hawaii Manoa; J.D., 1994, William S. Richardson School of Law, University of Hawaii Manoa; LL.M.,
1999, Yale Law School; consultant and former Director, Contemplative Law Program, Center for Contemplative Mind in Society.
I wish to thank Damien P. Horigan, Steven Keeva, Heidi Norton, and Luci Yamamoto for their helpful comments and
suggestions.
1
Leonard L. Riskin, The Contemplative Lawyer: On the Potential Contributions of Mindfulness Meditation to Law Students,
Lawyers and their Clients, 7 Harv. Negot. L. Rev. 1 (2002) [hereinafter Riskin, Contemplative Lawyer].
2
Id. at 45.
3
See infra notes 11-32 and accompanying text.
4
See infra notes 33-50 and accompanying text.
5
See Riskin, Contemplative Lawyer, supra note 1, at 32.
6
See infra notes 51-56 and accompanying text.
7
I participated in the first-ever mindfulness meditation retreat for law students, or law retreat, in October 1998 while a student in
the LL.M. program at the Yale Law School. I subsequently served as the part-time Director of the Law Program from 1999-2001
and currently am a consultant to the program. The views expressed in this essay are mine alone and do not necessarily reflect the
views of the Center for Contemplative Mind in Society. The Law Program and law retreats are cited throughout Riskin’s article.
See, e.g., Riskin, Contemplative Lawyer, supra note 1, at 34, 45.
8
I began Zen Buddhist meditation practice in 1986 with Robert Aitken Roshi and the Diamond Sangha and have maintained a
regular practice of daily meditation and annual or semi-annual intensive retreats since that time. Prior to entering law school in
1991, I completed a Masters degree in Asian Religions, with a focus on Buddhist environmental ethics. I have been in private
practice with full-service law firms since 1994, concentrating in environmental law and civil litigation. I have taught various
environmental law courses and legal methods at the William S. Richardson School of Law, University of Hawaii Manoa, since
1996. I also teach meditation to inmates as a volunteer at a local correctional facility.
9
Riskin’s efforts to introduce mindfulness meditation to ADR lawyers have met with significant interest. See Riskin,
Contemplative Lawyer, supra note 1, at 36. Gandhi, perhaps one of the greatest exemplars of law and contemplative awareness,
was a strong proponent of what is now termed ADR. See John Leubsdorf, Gandhi’s Legal Ethics, 51 Rutgers L. Rev. 923, 925
(1999) (noting Gandhi’s “devotion to alternative dispute resolution” and quoting Gandhi who wrote that “a large part of my time
during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I
lost nothing thereby--not even money, certainly not my soul.”). Gandhi later urged the implementation of Arbitration Boards,
which were to dispense “pure, simple, home-made justice,” as part of a political boycott of the British-imposed Indian court
system. Id. at 930.
10
Riskin, Contemplative Lawyer, supra note 1, at 48-60.
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11
Scholars and commentators frequently acknowledge that there is a question as to whether Buddhism is a religion or a philosophy
and practical way of life. The existence of this question itself strongly suggests Buddhist meditation practice may have more to do
with cultivating awareness in daily life than achieving mystical states. Riskin notes that “the teachings on which mindfulness is
based are as much a philosophy or a psychology as a religion.” Riskin, Contemplative Lawyer, supra note 1 at 32.
The Thai legal scholar Sompong Sucharitkul acknowledges this question at the outset of his study of law and Buddhism:
The first question relates to Buddhism itself as a religion. Most Buddhists regard the teachings of the Buddha as their religious
guidance and principles to observe. Some consider Buddhism as a philosophy, a practical way of life. Although Buddhism may be
different from other religions of the world in that the conception of a supreme being such as God is singularly absent from the
central theme of the Buddha’s teachings, nonetheless, Buddhism is generally regarded as a religion by historians and missionaries
alike.
Sompong Sucharitkul, Thai Law and Buddhist Law, 46 Am. J. Comp. L. 69, 69-70 (1998) [hereinafter Sucharitkal, Thai Law].
Buddhism is generally viewed in American law as a religion, despite lacking a notion of ‘God‘ similar to that found in Judaism,
Christianity, and Islam. See, e.g., Welsh v. U.S., 398 U.S. 333, 358 n.8 (1970) (Harlan, J., concurring); U.S. v. Seeger, 380 U.S.
163, 174 (1965); Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961); see also Cruz v. Beto, 405 U.S. 319 (1972) (per curiam);
Damien P. Horigan, Of Compassion and Capital Punishment: A Buddhist Perspective on the Death Penalty, 41 Am. J. Juris. 271,
273 (1996).
The Buddhist scholar Robert A.F. Thurman argues that “[s]ince wisdom is the ultimate cause of awakening ... from ignorance,
then [Buddhist] disciplines and practices are educational in the classical sense.... No God can awaken someone. No belief can
awaken someone. No meditation can awaken someone. The individual’s transformative understanding is their [sic] awakening.”
As such, the Buddhist tradition should be viewed “essentially as an education tradition. In its essence and beginnings, it is not too
religious in the usual sense of that word, i.e., focused on the transcendent, the sacred, concerned with ultimate realities, warrants
of meaning.” Robert A. F. Thurman, Meditation and Education: Buddhist India, Tibet and Modern America 4 (1996) [hereinafter
Thurman, Meditation and Education].
12
See Riskin, Contemplative Lawyer, supra note 1, at 32.
13
Buddhist scriptures, written in various Asian languages, are voluminous and take up several shelves in a library. Most of these
texts are written in Pali, a north Indian dialect. About one hundred years after the death of the historical Buddha, Siddhartha
Gautama, his followers recorded oral teachings from memory. These teachings became known as the Pali Canon or Tipitaka (or,
“Three Baskets,” because when they were written down they were kept in three different receptacles): (1) the Sutta Pitaka, or
discourses, which consists of five collections of sermons delivered by the Buddha; (2) the Vinaya Pitaka, or Book of Monastic
Discipline, which codifies the rules of the Buddhist Order, and (3) the Abhidhamma Pitaka, which is concerned with
philosophical and doctrinal analyses. See Karen Armstrong, Buddha xiii-xvi (2001).
14
See Riskin, Contemplative Lawyer, supra note 1 at 33-45.
15
I use the phrases “the use of reason in the law” and “legal reasoning” synonymously. Although the former conveys the intended
broad notion of reason in the law, the latter is less cumbersome and the accepted shorthand.
16
For a useful overview of this debate, especially as it relates to the method of analogy, see Emily Sherwin, A Defense of
Analogical Reasoning, 66 U. Chi. L. Rev. 1179, 1180-85 (1999). As described by Sherwin, analogical reasoning operates as
follows: “confronted with an unsettled question, the judge surveys past decisions, identifies ways in which these decisions are
similar to or different from each other and the question before her, and develops a principle that captures the similarities and
differences she considers important. This principle in turn provides the basis for the judge’s own decision.” Id. at 1179-80.
17
David R. Samuelson, Introducing Legal Reasoning, 47 J. Legal Educ. 571, 585 (1997) [hereinafter Samuelson, Legal Reasoning].
18
Critics of the method of analogy contend that “[l]egal reasoning is nothing more than reasoning ... about legal materials[.]” Alan
D. Hornstein, The Myth of Legal Reasoning, 40 Md. L. Rev. 338, 339 (1981). Stated otherwise, “[l]aw requires reasoning, but of
perfectly ordinary kinds.” Larry Alexander, The Banality of Legal Reasoning, 73 Notre Dame L. Rev. 517, 533 (1998). This view
seems to foreclose attempts to equate legal reasoning and purely mathematical reasoning. See Russell L. Caplan, Book Review,
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93 Harv. L. Rev. 817, 830-31 (1980) (reviewing Neil MacCormick, Legal Reasoning and Legal Theory (1978)) (explaining that
MacCormick steers “between the Scylla of ultrarational naturalism and the Charybdis of irrational emotivism. If there are no
absolutely right answers hanging from chains of pure deduction, there are at least rational arguments governed by a definite
sequence of intellectual operations.”). See also Samuelson, Legal Reasoning, supra note 17, at 585.
19
For example, Deepak Chopra, who has sold over ten million books on spiritual themes, claims that people can levitate and that he
has flown a distance of over four feet while sitting in meditation. David Beers, It’s All Good: The Appeal of Deepak Chopra (May
10, 2001) at http:// www.salon.com/people/feature/2001/05/10/allgood/index.html. “What pulls people toward Chopra is their
yearning to pull free of scientific rationality, or, more accurately, to escape the unenchanted world that two centuries of the Age of
Reason has bequeathed us.” Id.
20
See Walpola Rahula, What the Buddha Taught 68 (1958).
21
Id. at 74.
22
Armstrong, supra note 13, at xxvi.
23
Religious thinkers--including Buddhists--are often not considered to be paragons of reason. See, e.g., Christopher Hitchens,
Letters to a Young Contrarian 22 (2001) (criticizing the Dalai Lama’s argumentation on grounds that “there is not even a strand of
chewing gum to connect the premise to the conclusion”). The emphasis on dispassionate observation and analysis in the Buddhist
tradition mitigates this general criticism of religious thought.
24
Armstrong, supra note 13, at 101.
25
The international scholar Johann Galtung once related an anecdote that confirms this strain of skepticism in Buddhism. Galtung
held a temporary appointment at a university in Singapore. Although he was not a Buddhist and not interested in becoming a
Buddhist, he was interested in learning more about the religion. He therefore began to drop by a Buddhist temple in his
neighborhood during lectures and services. He sat in the back and kept to himself. After some time had passed, a temple member
approached him and asked what he was doing there. Galtung explained (quite candidly, he felt) that he was not interested in
joining the Buddhist religion but only in investigating the teachings and learning about what they were doing. The temple member
responded, “Oh, so you are a Buddhist.” Johann Galtung, Lecture, Honolulu Diamond Sangha (1990).
For an argument that Buddhism should not be classified as philosophical skepticism because it emphasizes the limitations of the
various sources of knowledge, including reason and perception, see David J. Kalupahana, Buddhist Philosophy: A Historical
Analysis 19 (1976).
26
One prominent scholar of history and comparative literature has observed that “many Americans have little understanding of what
is meant by meditation.” Brian Stock, The Contemplative Life and the Teaching of the Humanities 3 (1996).
27
Webster’s Third New International Dictionary defines “meditate” as “to ponder or reflect on; muse over.” Webster’s Third New
International Dictionary of the English Language 1403 (1971). Similarly, the Oxford Paperback English Dictionary and
Thesaurus defines “meditate” as: “engage in (esp. religious) contemplation.” Oxford Paperback English Dictionary and Thesaurus
2001, at http://www.askoxford.com/dictionary/meditate (last visited Feb. 15, 2002).
28
See Riskin, Contemplative Lawyer, supra note 1, at 3.
29
At least some Buddhists would concur that law and meditation are opposites. Walking across campus on my way to my first day
of classes as a first year law student at the University of Hawaii law school, I ran into a local Buddhist priest. The priest, an Asian
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immigrant who knew me as a graduate student in the Religion Department and from local Buddhist circles, was on his way to a
language class. When I explained that I had enrolled in law school, he drew back and exclaimed, “Oh! Buddha’s law is not like
American law!”
30
Rahula, supra note 20, at 68.
31
Id. at 68.
32
Jack Kornfield, Living Dharma: Teachings of Twelve Buddhist Masters 5 (1995).
33
Issues of identity in such areas as gender, race, and religion are notoriously complex. Rather than draw from resources from other
academic disciplines such as religious studies, sociology, cultural studies, and anthropology, for purposes of this essay I will focus
on commitment to Buddhist teachings and rituals rather than identification (self-identification or sociological typing) as
“Buddhist.” For recent views on Buddhist identity in America, see Daniel Coleman, The New Buddhism: The Western
Transformation of an Ancient Tradition (2000) (sociological study of American-born converts to Buddhism identifying “New
Buddhists” as those patronizing four types of Buddhist groups: Zen centers, Tibetan Buddhist centers, vipassana, or “insight
meditation,” centers and unaffiliated, nonsectarian centers); see also Stephen Prothero, Boomer Buddhism (Feb. 26, 2001) at
http:// www.salon.com/books/feature/2001/02/26/buddhism/index.html (describing and criticizing American Buddhists as
modern-day Puritans and American Buddhism as banal).
34
In his article, Riskin correctly deemphasizes without obscuring the relationship between mindfulness meditation and Buddhist
teachings. That is, he provides ample background and key ideas and teachings from the Buddhist tradition to explain and
illuminate mindfulness meditation, but does not attempt an exhaustive overview that may unnecessarily complicate matters. This
section is intended for lawyers who wish to know more about the relation of mindfulness meditation to other religious practices
and orientations.
35
Rahula, supra note 20, at 1-3.
36
Thurman, Meditation and Education, supra note 11, at 5.
37
See Sucharitkul, Thai Law, supra note 11, at 70; see also David Van Biema, Buddhism in America, Time (Oct. 13, 1997) at http://
www.time.com/time/magazine/1997/dom/971013/cover3.html (noting that “some Western observers see Buddhism as a
philosophy or even a psychology. By the same logic, employed optimistically by Jewish, Protestant and Catholic Buddhists of the
late 20th century, Buddhist practice can be maintained without leaving one’s faith of birth.”).
38
Armstrong, supra note 13, at 101.
39
Id.
40
See, e.g., Robert Aitken & Brother David Steindl-Rast, The Ground We Share: Everyday Practice, Buddhist and Christian (1996);
Buddhists Talk About Jesus, Christians Talk About the Buddha (Rita M. Gross & Terry C. Much eds., 2000); Dalai Lama, The
Good Heart: A Buddhist Perspective on the Teachings of Jesus (1998); Richard Henry Drummond, A Broader Vision:
Perspectives on the Buddha and the Christ (1995); Carin Dunne, Buddha and Jesus: Conversations (1994); Robert Elinor, Buddha
& Christ: Images of Wholeness (2000); Hugh Fincher, The Drum of Immortality (1998); The Gethsemani Encounter: A Dialogue
on the Spiritual Life by Buddhist and Christian Monastics (Donald W. Mitchell & James A. Wiseman eds., 1999); Thich Nhat
Hanh, Going Home: Jesus and Buddha As Brothers (2000); Thich Nhat Hanh, Living Buddha, Living Christ (1995); Jesus and
Buddha: The Parallel Sayings (Marcus Borg ed., 1997). See generally Journal of Christian-Buddhist Studies at
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http://muse.jhu.edu/journals/bcs/ (last visited Jan. 16, 2002). The Center for Contemplative Mind in Society features
Contemplative Outreach, a Christian contemplative order, on its website. See Center for Contemplative Mind in Society, available
at http:// www.contemplativemind.org/resources/links.html (last visited Feb. 11, 2002).
41
See, e.g., Sylvia Boorstein, That’s Funny, You Don’t Look Buddhist: On Being a Faithful Jew and a Passionate Buddhist (1997);
David A. Cooper, Three Gates to Meditation Practice: A Personal Journey into Sufism, Buddhism, and Judaism (2000); Rodger
Kamenetz, The Jew in the Lotus: A Poet’s Rediscovery of Jewish Identity in Buddhist India (1997); Alan Lew, One God
Clapping: The Spiritual Path of a Zen Rabbi (2001); Judith Linzer, Torah and Dharma: Jewish Seekers in Eastern Religions
(1996); Rosie Rosenzweig, A Jewish Mother in Shangri-La (1998); Rabbi Zalman Schachter-Shalomi, with Tetsugen Glassman
Roshi, Torah & Dharma (1994).
42
See Riskin, Contemplative Lawyer, supra note 1, at 4.
43
See id. at 33-38.
44
This is explained in an FAQ (frequently asked question) on the Center’s website:
Is the Center a Buddhist organization?
No, we are not a Buddhist organization, although we do value many of the teachings and methods which are a part of Buddhism,
such as insight meditation and loving-kindness meditation. We also employ several leading Buddhist teachers at our retreats due
to their expertise in forms of meditation which we practice and trust. However, we remain a secular organization committed to the
value and insights of all the religious and spiritual traditions and their associated forms of contemplative practice.
See Center for Contemplative Mind in Society, available at http:// www.contemplativemind.org/about/faq.html (last visited Feb.
4, 2002). It is worth noting that the current Director of the Contemplative Law Program, Heidi Norton, is a lifelong member of the
Society of Friends and her contemplative practice draws heavily on Quaker traditions of silent worship and sharing from silence.
Id. at http://www.contemplativemind.org/about/staff.html#heidi (last visited Feb. 4, 2002).
45
Id. at http://www.contemplativemind.org/about/mission.html (last visited Feb. 4, 2002).
46
Id. at http://www.contemplativemind.org/practices/ (last visited Feb. 4, 2002).
47
This approach results in a corresponding de-emphasis on Buddhist teachings in the Center’s promotional materials. For example,
the Law Program held its first-ever contemplative law retreat in October 1998. To solicit student participation, two faculty
members circulated an eight-page flyer announcing and describing the “Yale Law School Contemplative Practice Retreat.” The
flyer contains no direct reference to Buddhism but states: “Contemplative practice builds upon a 2500 year tradition of meditative
awareness that involves non-judgmental observation of the body-mind process.” Flyer, Yale Law School Contemplative Practice
Retreat (Oct. 1998) (on file with the author).
48
See Stephen Batchelor, Buddhism Without Beliefs: A Contemporary Guide to Awakening 17 (1998) (arguing that “the dharma
[i.e., Buddhist teachings and practice] is not something to believe in but something to do” and that if Buddhist teachings are to
offer an effective alternative to mainstream thought and values, they must be represented in a purely secular mode and divested of
religious connotations); see also Stephen Batchelor, The Awakening of the West: The Encounter of Buddhism and Western
Culture (1994).
49
See His Holiness the Dalai Lama, Ethics for the New Millenium 19-33; 219-21 (1999).
50
For discussions of the differences between religion and spirituality, see id. at 22-23; Lucia Ann Silecchia, Integrating Spiritual
Perspectives with the Law School Experience: An Essay and an Invitation, 37 San Diego L. Rev. 167, 176-81 (2000); Calvin G.
C. Pang, Eyeing the Circle: Finding a Place for Spirituality in Law School Clinic, 35 Willamette L. Rev. 241, 254-55 (1999).
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51
Robert Aitken, The Mind of Clover: Essays in Zen Buddhist Ethics 168 (1984) (quoting Jag Parvesh Chander, Teachings of
Mahatma Gandhi 375 (1945), in Unto Tahtinen, Non-violence as an Ethical Principle 93 (1964)).
52
See Aitken, supra note 51, at 168.
53
Id.
54
The Center’s programs, which incorporate mindfulness meditation, are aimed at something more than stress reduction. As the
Center’s Executive Director, Mirabai Bush, explains, “There are thousands of stress reduction methods in business ... meditation
practice leads to a whole different path of awareness, allowing people to think in different ways. Over and over I’ve seen people
have moments of awakening about their lives. What we can do is to create an environment in which people are more likely to
wake up, to make wholesome choices and to act compassionately.” See Center for Contemplative Mind in Society, available at
http://www.contemplativemind.org/programs/business/ (last visited Feb. 11, 2002).
55
One apt formulation of these perennial questions comes from Paul Gauguin, who, in a painting by the same title, asks: “D’ou
Venons Nous ... Que Sommes Nous ... Ou Allons Nous?” (“Where do we come from ... What are we ... Where do we go?”).
Diane Kelder, The Great Book of French Impressionism 377-78 (1980).
56
See Riskin, Contemplative Lawyer, supra note 1, at 48. Riskin’s view is that mindfulness meditation is not a separate vector of the
comprehensive law movement but that it may help lawyers to carry out the aspirations of the movement. I share this view, and
also hold out the possibility that in the future mindfulness meditation may both contribute in this manner and also evolve into a
separate vector. This vector may develop as more lawyers take up mindfulness meditation and further develop and refine methods
for incorporating mindfulness into daily work life. See Lewis Richmond, Work as a Spiritual Practice: A Practical Buddhist
Approach to Inner Growth and Satisfaction on the Job (1998).
57
Justice Holmes to Doctor Wu 14 (1947), in Fred R. Shapiro, Oxford Dictionary of Legal Quotations 184 (1993).
End of Document
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© 2011 Thomson Reuters. No claim to original U.S. Government Works.
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