Right scholarship and the goddesses of commercial law.

AuthorMartin, Nathalie
PositionSymposium: Female Perspectives in Commercial and Consumer Law


Sometimes scholarship is just scholarship. I am referring to the type of scholarship that is often written but barely read, the type written to impress someone or get a promotion rather than because there is a burning need or desire to say what needs to be said. Other times, scholarship flows from the heart, as a result of desire to share a discovery that could change the law, or to share a thought or series of thoughts that could change the world. I call this scholarship of the heart "right scholarship," a phrase taken from the Buddhist concept of right livelihood. Right scholarship reflects real passions and concerns of the heart that permeate its author's existence on an almost cellular level. This Essay examines examples of right scholarship in works of two commercial law "goddesses": Jean Braucher and Elizabeth Warren. (1)

This Essay combines many topics about which I am deeply passionate, including religion, sex, yoga philosophy, and the influential works of two women I admire greatly. Hopefully, this brief Essay does not try to do too much at the expense of all of these topics. (2) In Part I of this Essay, I describe the concept of right scholarship through various religious traditions and yoga philosophy's principles for living known as theyamas. I then describe, through the works of young scholar Shari Motro, scholarship that has gone wrong. Finally, through the psychological concept of flow, I describe how we know when scholarship has gone right. In Part II, I provide some background information and brief excerpts from right scholarship written by the commercial law goddesses, both of whom were intensely passionate about their work. Their work is scholarship from the heart that has changed the world.

I conclude this Essay with a few thoughts on what the rest of us legal scholars can take away from the work of the goddesses. One such takeaway is that we should not waste our valuable time. Every breath (and every word) counts. Though much legal scholarship makes little difference to the world, when we find our passion, we can make a difference. Using passages from the work of the goddesses as our muse, we can each find passion, flow, and meaning, and can develop the deep optimism that comes from believing legal scholarship can make a difference in the world.

  1. What is Right Scholarship?

    I wonder how different the world would be if legal scholars lived by the following mantra: (3) I will never again write about something I do not care about deeply.

    I also wonder what it would take for each of us to keep this promise, to ourselves, our schools, our students, and society. If we each took this mantra seriously, what would change for us and for others? How would our collective impact on the world change? How would our service to the world be enhanced? Finally, how fundamentally would our lives be enriched if we spent the time and effort to find out what we are passionate about?

    There are additional questions embedded in these initial questions. On a micro or individual level, those questions include: "How will each of us make the difference we'd like to make in the scholarly arena during the rest of our careers? How will we each choose what to write about?" On a more macro level, these questions include: "What is the future of legal scholarship? How will legal scholarship stay relevant in the modern world?" (4) Combining these inquiries, we can each ask how we can individually stay relevant not for the sake of fame but to help answer the eternal question: "What am I doing here on this earth? What is my purpose?"

    There is a concept in every major religious tradition in the world suggesting that we should use our limited time on this earth to do something meaningful and helpful. Indeed, most of us wish to make a difference in the world, and of course to do no harm. If possible, most of us wish to leave the world a better place than we found it. Buddhists call this concept of making a real difference in our work "right livelihood," and this Essay asks what right livelihood means in the context of legal scholarship. It also asks how we can help recognize the passion underlying meaningful scholarship in the works of ourselves and others, so that these meaningful endeavors can multiply, and change the world in which we live.

    Right scholarship is not about what is right versus wrong. It is scholarship with purpose, scholarship that derives from passion about a particular issue or cause. At its essence, right scholarship requires that we pick projects carefully, recognizing that every space on the page is like a breath expended. We only have so many breaths (5) so we need to make each exhale worth it.

    In other words, everything we choose to write is taking up space that could be used to write or do something else, so we need to think carefully before taking on a project. This is true throughout our careers but perhaps most importantly at mid-career, when we are often asked to do many things about which we may not be passionate. Every article, every book, every study, is an opportunity taken and thus an opportunity lost on something else. We need to be planners and determine how best to make our mark.

    1. Religion and Right Scholarship

      As Vietnamese Zen Buddhist teacher Thich Nhat Hanh once wrote, "To practice Right Livelihood (samyag ajiva), you have to find a way to earn your living without transgressing your ideals of love and compassion." (6) The concept of right livelihood in legal education has been explored by at least one legal academic, (7) who believes that good law teaching comes from the identity and integrity of the teacher and the teacher's "ability to weave a concrete web of connections among themselves, their subject [matters]." (8) This, Professor Laurie Morin explains, allows students to learn to "weave a world for themselves." (9)

      In general, seeking right livelihood involves using one's full capacities "to make a genuine contribution to not only one's personal development but also to the well-being of humanity," (10) which places the goal of spiritual health on equal footing with the material well-being that goes along with being employed. Fulfilling right livelihood means finding work that makes a meaningful contribution to our lives and the lives of others."

      Right livelihood is one step on the Buddhist eight-fold path. Simplifying greatly, under Buddhist teachings, in order to remove suffering, it is necessary to overcome craving and delusion by following an "Eightfold Path" of right view, right intention, right speech, right action, right livelihood, right effort, right mindfulness, and right concentration. (12) As the modern and Western world has become more familiar with this idea of right livelihood, right livelihood has expanded to mean finding work that is personally fulfilling, that helps rather than harms people (or is neutral), and that can change the world for the better. (13)

      The notion of work that links people to a higher purpose can be found in nearly every religious, cultural, and spiritual tradition in the world. (14) For example, in one speech at an international law symposium, C.G. Weeramantry, former Judge and Vice President of the International Court of Justice at The Hague, presented a speech on his book The Lord's Prayer, Bridge to a Better World. In the speech, he asks "whether there is the possibility to nourish our legal systems from the reservoirs of morality that are contained within the world's great religions," (15) and then suggests that much could be accomplished by looking carefully at the meaning of the Christian Lord's Prayer. (16) As he explains:

      The Lord's Prayer has this advantage, every day it is recited by hundreds of millions of people across the world. Hundreds of millions of people know it. That is a good base from which to begin. Unfortunately, it tends to be a mere ritual repetition, a thoughtless recitation, rather than a contemplative reflection. What we want is a contemplative reflection of the principles of the Lord's Prayer. If we can make individuals more sensitive to these aspects, since there are millions of individuals involved, that can make a very real impact upon the world's situation today. So that is very important from the standpoint of Christianity. Likewise one can do the same for the scriptures of all the religions of the world, Buddhism, Hinduism, Judaism, Islam, all of them are rich reservoirs of moral conduct which can guide human conduct in the next millennium. The Christian himself can draw a lot of inspiration from the minute analysis of human conduct contained in those religions. To give you just one example, Buddhism talks of right conduct, the sort of conduct that a good human being should follow. It divides it into eight categories: there is right action, right speech, right livelihood, right thought, right concentration and so forth analyzing it in very great detail. Anyone reading those scriptures can gain a very great amount of inspiration from them. Even in regard to a better understanding of Christian conduct. Likewise, all the religions have concepts that would be of very great value to the law of the future. (17) Indeed, the more one studies the religious traditions of the world, the more one sees similarities among them, as well as connections to the legal world around us.18

    2. Yoga Philosophy and Right Scholarship

      Yoga philosophy provides another Eastern example of these universal principles. Yoga philosophy is not a religion but a philosophy first practiced by gurus or spiritual leaders in ancient India. Early yoga texts, thought to be written by the scholar Patanjali, contain a "ten commandments" of sorts, comprised of five restraints or ethical principles by which to live, and five personal observances. (19) These principles are universal in many respects and reflect the teachings of most of the major world religions. They also apply quite directly to practicing and teaching law. For...

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