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Original Articles

Learning to think like a lawyer--one law teacher's exploration of the relevance of evolutionary psychology

Pages 283-311 | Published online: 21 Jul 2010

References

  • Bloom , B. and Krathwohl , D. 1956 . Taxonomy of Educational Objectives: the Classification of Educational Goals Handbook 1: the Cognitive Domain , New York : Longmans Green . Higher education institutions in the UK seem to have borrowed heavily (often copied wholesale), in specifying learning outcomes, from the work of
  • Bloom , B. , Krathwohl , D. and Masia , B. 1964 . Taxonomy of Educational Objectives Book 2 Affective Domain , New York : Longman . In fact Bloom and colleagues were equally interested in the affective (emotional) and psychomotor domains. For the former see, a volume rarely referred to, perhaps because unlike the cognitive taxonomy it does not contain a chart of outcomes which can be photocopied and passed to course designers
  • Brayne , H. 1998 . Counselling skills for the lawyer. Can lawyers learn anything from counsellors? . Law Teacher , 32 (2) : 137 – 155 . For example
  • Webb , C. , Maughan , C. and Maughan , M. 2001 . How does it feel to think like a lawyer? . Paper to WG Hart conference . June 26 2001 . The idea of law students looking at emotions is not new, for example see
  • Watson , A.S. 1963 . Some psychological aspects of teaching professional responsibility . Journal of Legal Education , 16 : 1
  • Carroll , J. 1995 . Evolution and Literary Theory , Columbia , MO : University of Missouri Press . Evolutionary psychology is beginning to have a significant impact on many disciplines. Its impact on literary theory was recently reviewed in the Times Higher Education Supplement, 13 July 2001; see for example
  • Nicholson , N. 2000 . Managing the Human Animal , New York : Crown Publishers . its potential impact on management theory is explored in
  • Masters , R.D. and Gruter , M. 1992 . The Sense of Justice, Biological Foundations of Law , Newbury Park , CA : Sage Publications . theories of justice derived from an understanding of our evolutionary origins are set out in, for example, See also the website for The Society for the Evolutionary Analysis of Law at www. law.asu.edu/jones
  • McEwan , I. 2001 . The great odyssey . The Guardian , 9 June citing E.G. Wilson
  • Daly , M. and Wilson , M. 1988 . Homicide , New York : Adline de Gruyter . See for example, which forms part of a series of publications on the foundations of human behaviour relevant to legal regulation. DaIy and Wilson analyse homicide statistics across nations and across cultures, finding that there is a marked difference between male and female homicide rates, and in family homicide a marked difference between killing biological kin and non-biological kin. Killing of close kin would threaten the passing of the genes and is rare
  • Maguire , C. 2001 . The curious case of Phineas Gage . BVC Conference . November 14 2001 , Chester . This conference is concerned with training of barristers in England and Wales
  • Brayne , H. 1996 . Getting by with a little help from our friends--a personal view of legal education . Contemporary Issues in Law , 2 (2) : 31 – 51 . I have presented a case in favour of clinical legal education and skills elsewhere: see
  • Brayne , H. 2000 . The case for getting law students engaged in the real thing-the challenge to the saber-tooth curriculum . Lota Teacher , 34 (1) : 17 – 39 .
  • Brayne , H. , Duncan , N. and Grimes , R. 1998 . Clinical Legal Education, Active Learning in Your Law School , London : Blackstone Press .
  • Rose , H. and Rose , S. , eds. 2000 . Alas, Poor Darwin , New York : Harmony Books . Is evolutionary psychology a new 'grand-narrative9 giving believers a superior insight? Evolutionary psychologists have been accused of behaving as if these insights are spiritual and of behaving in a dogmatic almost religious way in their fervour to analyse the world through this new perspective. See, in particular the chapter 'Less Selfish than Sacred' by D. Nelkin at p. 17 onwards. I acknowledge that for me evolutionary psychology brings a paradigm shift in my understanding of human behaviour
  • Dennett , Daniel C. 1994 . Darwin's Dangerous Idea-Evolution and the Meaning of Life , London : Penguin Books Ltd . I will not seek to prove that the evolutionary theory is correct. For those who prefer a creationist theory my paper will be of little relevance. Such a reader might read, in order to examine the tension between creationist and evolutionary perspectives. The view that evolution's role in explaining behaviour has been greatly exaggerated is set out, polemically but challengingly, in Rose & Rose, op. cit
  • Darwin , C. 1871 . The Descent of Man , 15 London , CA : The Thinkers Library . CA Watts and Co., republished 1930
  • Buss , D. 1999 . Evolutionary Psychology: The New Science of the Mind , 9 Boston : Allyn & Bacon . I cite Buss frequently as I have found this text to provide an accessible and comprehensive explanation to the theories and findings of evolutionary psychology, and the author explains and cites the relevant research in relation to the propositions put forward. As he is widely cited and, when evolutionary psychology is under attack in Rose & Rose, op. cit., specifically targeted, I assume his views are significant in the field
  • Dawkins , R. 1989 . The Selfish Gene, , 2nd edition , 1 Oxford : Oxford University Press . "Today the theory of evolution is about as much open to doubt as the theory that the earth goes round the sun."
  • Buss, op. cit., at 9. Compare Aldous Huxley's statement that "Facts do not cease to exist because they are ignored" (cited at www.onthenet.com.au). While there are many branches of psychology, Buss also points out (at p. 9) that at root "all psychological theories are implicitly or explicitly evolutionary". He adds that no psychologist has ever suggested any other causal process for human nature than evolution.
  • Ridley , M. 1994 . The Red Queen, Sex and the Evolution of Human Nature , 12 Harmondsworth : Penguin . The literature I have encountered seems to agree that there is virtually no genetic variation, save the adaptation of skin to amount of sunlight and slight variations in physique, between human ethnic groups, many of which had no contact for tens of thousands of years. This confirms the slow pace of evolution for humans: see for example, (Such a scientific consensus incidentally destroys any racist argument that evolution somehow made more rapid progress with certain parts of the human race than others, and lends weight to the following extract from the preamble to the 1963 UN Convention on the Elimination of All Forms of Racial Discrimination: "Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere".)
  • Dawkins , R. 1990 . The Blind Watchmaker , London : Penguin Books . Writers use words such as 'design' as a shorthand term to convey a process that is in fact the exact opposite of design. Adaptations which are successful are those which serve a function (the long neck of the giraffe, the shell of a turtle, the courtship displays of adolescent humans), but it is wrong-unless using a creationist approach-to extrapolate from function to design, even though the result looks like a designed work. Dawkins uses the metaphor of the blind watchmaker to conceptualise the evolutionary process, first published 1986
  • James , W. 1962 . Principles of Psychology , 406 New York : Dover . Despite, or perhaps because of, our brain size we may have more such pre-programmed behaviours than other animals. William James, one of the founders of the science of psychology, stated of instincts that "no other mammal, not even the monkey, shows such a large list", first published 1890
  • Ibid., 7-8.
  • Goleman , D. 1996 . Emotional Intelligence: Why it can Matter More than IQ , 9 – 12 . London : Bloomsbury Publishing .
  • Damasio , A. 1999 . The Feeling of What Happens: Body and Emotion in the Making of Consciousness , 55 New York : Harcourt Brace . The conscious mind is not aware of all these levels of course. Damasio, in his book on the biology and experience of consciousness, suggests that only what he calls "high reason" is accessible to the conscious mind. This consists of "complex, flexible, and customized plans of response … formulated in conscious images [which] may be executed as behavior". Below the level of consciousness are feelings ("Sensory patterns signalling pain, pleasure"), below that are emotions ("Complex, stereotyped patterns of response …") and basic life regulation (metabolic function etc). See, table 2.1
  • O'Connell , Robert J. 1997 . Plato on the Human Paradox , New York : Fordham University Press .
  • Skinner , B.F. 1953 . Science and Human Behavior , New York : Free Press . For an example of the approach of one of the leading proponents of behaviourism, see; London, Collier-Macmillan, 1965
  • Jones , O. Time Shifted Rationality and the Law of Law's Leverage . Behavioural Economics Meets Behavioural Biology , (published www.law.asu.edu/jones). Professor Jones co-ordinates the Society for an Evolutionary Analysis of Law, which can be accessed via this website. This website provides valuable guidance on reading in this area as well as access to some full text papers
  • Ibid.
  • 2002 . New Scientist , 9 January reporting a variant on the prisoner's dilemma described in note 56 below, in which defectors who got more money at the expense of the group could be punished, though it meant the punisher losing (in this experiment) real cash. Anger at defections overcame desire to maximise personal economic advantage
  • Axelrod , R. 1990 . The Evolution of Cooperation, , 2nd edition , London : Penguin Books . Interestingly computer programmes can demonstrate the advantage of a strategy of co-operation, even when playing a comptitive game against programmes designed not to co-operate. In game theory the prisoner's dilemma is often used as the theoretical model. In this game two players can choose each time whether to co-operate with each other or defect. While the score accumulated game by game is highest in total if both co-operate (say five points each per game for mutual cooperation), in relation to the opponent in any particular match the score is always highest for the player who defects (say seven for the defector against two for the player who would have cooperated, but a mere three each where both defect). The most successful software turned out to be the programme which always co-operated to start with, but then always copied the last move of its opponent. In this way it would punish defection but still be ready to co-operate with a reformed opponent. This programme 'lost' against any programme which defected, but by cooperating where possible against all opponents gained the greatest advantage over a series of engagements, gaining more points than any other strategy. See
  • Asch , S. 1951 . “ Effects of group pressure upon the modification and distortion of judgments ” . In Social Psychology, , 3rd edition , Edited by: Guetzkow , H. 174 – 182 . New York : Holt Rinehart and Winston .
  • Milgram , S. 1976 . Obedience to Authority , New York : Harper and Row .
  • 2000 . Legal Practice Course Board Written Standards , Law Society .
  • 2001 . Bar Vocational Course-Course Specification Requirements and Guidance , Bar Council . these are discussed in
  • Brayne , H. and Grimes , R. 1998 . The Legal Skills Book , 95 – 96 . London : Butterworth .
  • Richards , G. 1987 . Human Evolution, An Introduction for the Behavioural Sciences , 31 Routledge and Kegan Paul .

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