Thinking Like Thinkers: Is the Art and Discipline of an "attitude of Suspended Conclusion" Lost on Lawyers?

• Publication year: 2011

SEATTLE UNIVERSITY LAW REVIEWVolume 35, No. 1FALL 2011

ARTICLES

Thinking Like Thinkers: Is the Art and Discipline of an "Attitude of Suspended Conclusion" Lost on Lawyers?

Donald J. Kochan

I. Introduction

In his 1910 book, How We Think,(fn1) John Dewey proclaimed, "[T]he most important factor in the training of good mental habits consists in acquiring the attitude of suspended conclusion."(fn2) This Article comes at an opportune time, just after the centennial anniversary of that book, to reflect on its insights, explore that proclamation, and describe its meaning and significance in the enterprise of thinking generally and its importance in lawyering particularly.(fn3) This Article briefly begins by commenting on Dewey's larger corpus of work, especially his work on logic and legal reasoning. It will then highlight the importance of the attitude of suspended conclusion to thinking and the importance of training and instilling the attitude. This Article examines competing habits of mind and covers methods to overcome them. This Article then argues for the importance of the attitude of suspended conclusion for legal thought and ends with a short conclusion on the importance of adopting a disciplined attitude of suspended conclusion generally.

This Article examines a foundational concept in the study of thought that was presented in How We Think: the attitude of suspended conclusion. If we think about the phrase "suspended conclusion" and break it into its component parts, we can see that (1) it does not foreclose an ultimate conclusion; (2) it simply requires suspension before conclusion; and (3) it means that there must be some prerequisite act- thinking-before conclusion and after suspension. When one adopts an attitude of suspended conclusion, one avoids being conclusory. One embraces doubt, accepts confusion and anxiety, examines alternative suggestions, overcomes impatience and habitual tendencies to rush toward an answer, and otherwise avoids the impulsive tendencies toward a premature conclusion.

This concept has seldom been discussed in the literature on legal education.(fn4) In essence, it is an admonition that individuals should think like thinkers-they should dedicate themselves to the task of reflective thought. Dewey's exposition on reflective thought presents the starting point for analysis of the suspended conclusion concept. Dewey explains:In some cases, a belief is accepted with slight or almost no attempt to state the grounds that support it. In other cases, the ground or basis for a belief is deliberately sought and its adequacy to support the belief examined. This process is called reflective thought; it alone is truly educative in value, and it forms, accordingly, the principal subject of this volume.(fn5)

Dewey then posits as his leading premise in How We Think that the mind must learn to suspend conclusion-to suspend judgment-at the outset of any approach to a problem that presents itself to the mind for thought.

The critical paragraph from How We Think for the purposes of the remaining discussion in this Article explains the pivotal importance of the suspended conclusion concept or rule for reflective thinking: Reflective thinking, in short, means judgment suspended during further inquiry; and suspense is likely to be somewhat painful. As we shall see later, the most important factor in the training of good mental habits consists in acquiring the attitude of suspended conclusion, and in mastering the various methods of searching for new materials to corroborate or to refute the first suggestions that occur. To maintain the state of doubt and to carry on systematic and protracted inquiry-these are the essentials of thinking.(fn6) This insight can become a powerful tool if implemented in a disciplined approach to the thinking process.

One attains the attitude of suspended conclusion when developing an art and discipline that quells the jittery impulse for the fix of a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. The thinker must approach every problem with an open mind and without a predetermined conclusion. The thinker must overcome the anxiety associated with suspense. A conclusion is the end of a reflective process, not an end in and of itself.

Perhaps this guidance is so obvious that it seems not to deserve this level of attention-the dedication of study to something so seemingly prosaic. I contend that there is new light to be gleaned from what otherwise seems ordinary. My challenge to the reader is to consider the following claim: this lesson indeed deserves such attention precisely because it is so obvious but too often ignored as to make its study intellectual.(fn7) A discipline of following the rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to "shoot first and ask questions later."(fn8) The rule of suspended conclusion must be engaged before firing the synapses of thought.

The potent suspended conclusion concept encompasses much of what a lawyer or student of law needs to know to properly and fully evaluate a legal problem. As such, this Article is written largely with the lawyer in mind, but the full discussion of the concept has implications for thinkers of all types.

Lawyers face a unique problem in their thinking in the form of debilitating tendencies specific to law that prevent them from adopting the attitude of suspended conclusion. The very nature of a lawyer's professional obligations will serve as an impediment to successful adoption and application of the attitude. The tendency to become entrenched in a position and immovable from it is widespread in law, politics, and personal and professional relations of all types. Yet, because lawyers typically begin their professional task with a predetermined position, they are more susceptible to the tendency to seize and freeze(fn9) on a particular position rather than fully explore a problem and potential conclusions. An attitude of suspended conclusion can lead to better thinking and arguing, and better outcomes in a variety of lawyering settings by fighting the tendency to seize and freeze. Lawyers should aspire to inculcate it as a discipline in their thought processes, even in the face of limitations to be discussed later.

There are several areas of seemingly related literature that need not be discussed in any detail in order to advance this Article's thesis. This includes literature and study from several areas of educational philosophy, psychology, and pedagogy, as well as most of Dewey's work outside the relevant portions of How We Think. This Article does not intend to enter areas already laid with substantial cover. This Article also does not enter the debate on teaching or learning techniques, processes, or methods, although I have briefly surveyed those subjects elsewhere.(fn10)

One particular body of scholarship and commentary that deserves special recognition because it is distinguishable from this Article is the pervasive and extensive literature on "thinking like a lawyer."(fn11) Too much emphasis has been given to the idea of thinking like a lawyer and not enough to "thinking like a thinker." A review of the literature reveals that there is little agreement on what thinking like a lawyer means or if it means anything at all.(fn12)

The discourse on thinking like a lawyer ranges across a number of approaches and critiques. This Article does not attempt to evaluate these varied opinions,(fn13) endorse any particular view on the subject, or discern the relative truth or importance of the thinking like a lawyer mantra for the process of educating legal minds. Indeed, some conceptions of what it means to think like a lawyer may actually impede our ability to think like thinkers. Whatever thinking like a lawyer means or whatever process of learning techniques help achieve it in law school-theoretical versus practical or clinical, visual versus verbal, lecture versus Socratic Method, problems versus cases versus narratives, and other like disputes-a rule that guides lawyers away from instant gratification and the instinctual demand for answers and instead toward suspended conclusion and its implicit and concomitant demand for employing reflective inquiry surely fits within each approach. Rather than trying to figure out how a lawyer thinks, this Article aims to figure out how a thinker thinks and asks that each lawyer aspire as a lawyer to be a thinker.

This Article posits that the attitude of suspended conclusion is an important weapon in the arsenal of attack whenever one is asked to think and approach problems. John Dewey's How We Think should be a must-read for lawyers and thinkers of all types,(fn14) and it has particular insights and utility for training the mind (legal or otherwise). The training of good mental habits requires adopting the attitude of suspended conclusion and mastering the requisite methods of analysis that must be employed before reaching any resolution of a legal problem.

Before diving into the attitude of suspended conclusion, Part II briefly introduces the reader to John Dewey's vast corpus of work, principally to understand his influence and to narrow the scope of this Article. Part III discusses, again briefly, Dewey's limited work dedicated specifically to issues of legal reasoning and the...