Christian Family Law Association

Piaget’s Cognitive and Moral Development Theory:

The Games Lawyers Played

By Lloyd Kelso

In 1927 Felix Frankfurter, a professor at Harvard Law School, and later a justice on the United States Supreme Court, said, "In the last analysis, the law is what lawyers are. And the law and lawyers are what the law schools make them." Frankfurter is right in that the law is what lawyers are to a great degree. But are the law and lawyers what law school makes them? Developmental psychology tells us that people, and lawyers in this instance, develop cognition and morality throughout childhood and into adulthood. The games, particularly competitive games, can have an impact on them as attorneys. This article will address this issue as it relates to the theory of developmental psychologist Jean Paget.

Brief Biographical Sketch of Jean Piaget

Jean Piaget (1896-1980) was born in Neuchatel, a town in the French-speaking part of Switzerland. His father, Arthur, was a historian. His mother, Rebecca, was a bright but troubled woman who was active in political causes. Piaget adopted anti-capitalistic views early and became active in Christian Socialist groups. He was bored in school and often wrote scathing remarks about his classroom instruction. He joined a biology club at age ten, where began to write about nature. He took a leadership role in the Friends of Nature Club. He worked with a professor who was an expert in the classification of mollusks (clams and snails). He studied Henri Bergson’s philosophy of creative evolution, a theory he would later reject. At nineteen, he published a poem entitled "The Mission of the Idea" in which he traced the progress of "The Idea" through history. He wrote a book entitled Recherche (translated best as The Search). It was a work of fiction about a young man named Sebastian (obviously Piaget himself) and his conflict between science, religion, values, and the idea of equilibrium, which became central to his views on genetic epistemology. We have no clear idea why Piaget turned his attention to psychology, but in 1918 he entered the University of Zurich and became interested in the psychoanalysis of Carl Jung. In 1919 he moved to Paris to work as a research associate under Theodore Simon, the intelligence tester who inherited Alfred Binet’s laboratory. His job was trying out new intelligence test questions with children. Although intelligence testing was concerned with whether the children gave the right answers to the questions, Piaget began to focus on why children gave the wrong answers. He developed interviews to better understand their reasoning for errors. From this experience, he gained a new career and lifelong antipathy for psychometric testing. After writing an article on verbal comparisons made by children, he began teaching at the University of Geneva, where he became the director of research at the Jean Jacques Rousseau Institute in 1921. He began to further study children’s thought. Except for a five year period at the University of Neuchatel and few years when he commuted to Paris to lecture part-time at the Sorbonne, Piaget remained in Geneva for the rest of his life. Although he said later that he initially intended to spend ten years studying child psychology, it became a lifelong endeavor. Piaget’s descriptions in his writings of his early life are largely inaccurate. The historical account of Piaget used here is from Fernando Vidal’s (1994), Piaget before Piaget.

Piaget’s Theory: Significant Premises, Formulations, and Implications

Piaget’s theory is complex and difficult to summarize. He considered human development as biological, so cognitive development follows the same process of epigenesis as other abilities in humans (Cook, 1999, p. 218). He makes two important assumptions. First, he assumes that humans are born with a set of biological reflexes that have "hereditary organic reactions." These reflexes are biologically programmed behaviors that produce consequences. Second, Piaget assumes that infants are naturally proactive in that they spontaneously initiate encounters with the environment. Where Freud assumed the presence of an irrational mind (the id), and Skinner assumed a tabula rasa mind ready-made to begin accumulating associations, Piaget assumes no mind at all. Rather the mind evolves in his view as a natural consequence of the first two assumptions (Green & Piel, 2002, pp. 283-4). So the mind makes an internal representation of what is sensed in external reality, and these internal representations are organized into small units or schemas. Schemas are fair representations of reality, and they are continuously being adapted to better match the external world as more information is sensed and stored. Piaget referred to this process as assimilation and accommodation. Assimilation is the process of interpreting new objects or events and incorporating them into their existing schemas or knowledge. Accommodation occurs as individuals modify or adjust existing schemas, or create new schemas, to reflect new events or objects. Piaget viewed play as virtually pure assimilation and imitation as primarily accommodation. So every behavior for Piaget consisted of the dynamic interrelationship between assimilation and accommodation (Cook, 1999, p. 218).

Piaget described cognitive development in four stages. The first stage is the sensorimotor stage, the period between birth and two years of age, when intelligence evolves from infants’ actions on their environment. Object permanence (recognizing that an object that is out of sight nevertheless continues to exist), imitation (being able to reproduce observed actions), and symbolic abilities (language and play) develop during the sensorimotor stage. Piaget further divides this stage into six substages (Cook, 1999, p. 218-9). During the first three substages infants begin proactive, inborn reflexes. Through repetition, the reflexes become generalized and differentiated, giving rise to schemata, which are the organized action patterns. During this period infants learn to perform actions to reproduce events in their environment. In substage four, object permanence occurs. Infants begin to formulate intention (not mental intention), which is the differentiation between means and ends, between procedures and objects. Mental intention is not formed until the end of the sensorimotor stage. During this substage infants begin to use different schemata with different objects instead of using the same schemata over and over again. During the final two substages infants continue assimilating and accommodating their action schemata to objects. At the end of the sensorimotor stage infants begin to engage in groping when they actively experiment with their schemata to see what different effects are produced. Toward the end of substage six, infants experience a transition from sensorimotor action to mental representation that are internalized which is the beginning of thought. They can anticipate the results of schemata before their actions rather than physically after the fact (Green & Piel, 2002, pp. 292-3).

The second stage of Piaget’s theory of cognitive development is the preoperational stage, the period between two and seven years of age. During this stage children begin to represent the world with words, images, and drawings. Symbolic thought goes beyond simple connections of sensory information and physical action. Although they can symbolically represent the world, children in this stage lack the ability to perform operations, which are internalized mental actions that allow them to do mentally what they previously did physically (Santrock, 2004, p. 49). The most important new ability of this stage is the semiotic or mental function that enables the child to perform mental actions and mental manipulations of objects that replace the previous stage’s physical activities. Actions are now directed by anticipation and coordination. The most powerful of the semiotic functions is language, which provides the user with a ready-made system of symbols for relating to objects and for socializing through communicative interaction with others. Children at this stage do not yet think logically. Operative knowledge during this stage consists of egocentric intuitions and preconcepts that are semisocialized patterns of thinking. Figurative knowledge consists of the specific mental images, memories, symbols, and language actually used as a child. This stage is characterized by a narrow field of attention or centration (focusing on only one element of a situation at a time), by thoughts that seeing is believing (the belief that what they see is real and true by virtue of their vision), by subjective egocentrism (an aspect of thinking that derives from, is directed by, and aims toward ends determined by the child’s own point of view), by animism (a childlike belief that inanimate objects are endowed with human qualities), by artificialism (a belief that natural features were created by people for their own purposes), by one-way thinking also called transductive reasoning (that thought simply unfolds in one direction without any accompanying ability to reverse itself, self-correct, or be sensitive to contradiction) (Green & Piel, 2002, pp. 294, 296-297).

The third stage of Piaget’s theory of cognitive development is the concrete operational stage, the period between age seven and early adolescents. For some people this stage lasts for the rest of their lives. In this stage children can perform operations. Piaget uses the word concrete to refer to the child’s ability to think about and mentally transform element of physical reality. He uses operation as a reversible mental action. Reversibility is the cognitive ability to mentally perform a cognitive action coupled with the ability to mentally undo that action. This involves decentration, or the ability to simultaneously think about two or more aspects of a situation at the same time. In this stage, the child’s logical reasoning replaces intuitive thought as long as reasoning can be applied to specific or concrete examples. Concrete operations involve characteristics such as identity, transitivity (if A equals B, and B equals C, then A equals C), inversion-negation (classes can be composed or decomposed through opposing transformation that cancel each other), and reciprocity (the reciprocal of a logical relationship) (Green & Piel, 2002, pp. 298-302).

The fourth stage of Piaget’s theory of cognitive development is the formal operational stage which appears between the ages of eleven and fifteen and continues through adulthood. Individuals move in this stage beyond concrete experiences and think in abstract and more logical terms. Some individuals never achieve this stage. Piaget used various tasks to assess this stage, like having someone determine what controls how fast a pendulum swings. Formal operational thought is hypothetico-deductive because the mind is capable of formulating hypotheses and deducing their logical implications. Individuals in this stage can engage in mulivariate thinking where various factors are associated with causing a phenomenon like the weather. They engage in thinking about thinking, which involves thinking about one’s own thoughts. Teenagers who engage in thinking about thinking often attribute thoughts to others as with an imaginary audience, or gain a glorified self image referred to as personal fable, where they believe they are immune to natural forces. Adolescents often develop images of ideal circumstances, referred to as subordination of reality to possibility, like imagining what an ideal parent is like compared to their own parents. Piaget’s stages of cognitive development are summarized in Figure 1.1 below.

Figure 1.1 Piaget’s Four Stages of Cognitive Development. Source: (Santrock, 2004, p. 49)

Piaget identifies four factors that work together to produce change from stage to stage. The first three are referred to as classical factors and consist of biological maturation, physical experience, and social transmission. The fourth factor called equilibration is the most important because it regulates the other three. It is the primary reason Piaget’s theory is classified in the constructivist paradigm (Green & Piel, 2002, pp. 306-307). Because of the scope of this paper, these will not be discussed in detail here.

Piaget theorized that moral development proceeded from heteronomy, or the constraint of an external authority, to autonomy, or self-rule. Heteronomy occurs in early childhood when the child is under the domination of the parent. The child is good when respecting those in authority by obeying their commands, and in accepting whatever rewards and punishments are given. As a child, being right is to obey adults, and being wrong is to have a will of one’s own. Piaget believed that autonomy occurs in middle childhood, when the child moves from a morality that is imposed from without to one that is guided from within, from one that is based on authority to one that is based on equality and fairness Concern for the rights and welfare of others develops naturally through interaction with peers (Clouse, 1999, p. 764). Piaget interpreted ethical action in terms of moral judgment. A moral judgment represents the application of human reason in order to arrive at a moral solution to any situation. He believed that all human beings are capable of reason and moral judgment. The best means to understand moral development include the use of dilemmas that require the application of moral judgment through problem-solving. Before age ten, children resolve dilemmas by rigid and unbending application of rules. Soon after age ten, children Piaget observed that children apply their growing sense of abstract thinking to moral dilemmas with altered effect. Older children and adolescents are able to reach different conclusions about the same dilemmas (Balswick, King, & Reimer, 2005, pp. 246-7).

Lawrence Kohlberg took Piaget’s theory of moral development, and through studying adolescents and young adults, expanded Piaget’s two-process system to a six-stage sequence of moral development that extends from early childhood through adulthood (Clouse, 1999, p. 764). The most significant portion of Kohlberg’s theory for purposes of our inquiry in this paper is that reasoning according to moral principles is a latter and more lofty stage of moral development than simply obeying the laws of the land, where most people in America believe they should be in terms of their moral development. Kohlberg’s theory was referred to by Carol Gilligan as a justice perspective, which is a moral perspective that focuses on the rights of the individuals, where individuals stand alone and make moral decisions independently. Gilligan opted for a view she called the care perspective, which is a moral perspective that views people in terms of their connectedness with others and emphasizes interpersonal communication, relationships with others, and concern for others (Santrock, 2004, 343-4). Santrock (2004) cites a study by Gilligan and Attanucci, that "While females often articulate a stronger care perspective and males a stronger justice perspective, the gender difference is not absolute. For example, in one study, 53 of the 80 females and males showed either a care or a justice perspective, but 27 individuals used both orientations, with neither predominating" (Santrock, 2004, p. 344).

Review of Current Research

Piaget’s theory has generated significant research, particularly between the late 1960's and the mid 1980's, when research began to focus more on information processing and artificial intelligence theories (Green & Piel, 2002, p. 308). Many of the studies in the 1970's are summarized or mentioned in Green & Piel (2002, pp. 309-11). Due to space limitation for this paper, all of the research articles read could not be summarized here. The following are some recent research articles this author found interesting that discussed Piaget’s theory.

Gavin Nobes (1999) wrote an article confirming the findings of Piaget’s claim that children do not differentiate moral and conventional rules. Nobes investigated children’s understanding of rules by observing 5-, 6- and 7-year-olds engaging in unrestricted joint activity with familiar peers. Initially, all groups collectively regulated themselves by negotiating the invention and alteration of rules, demonstrating understanding of the consensual origins, relativity and mutability of their own rules. Children who later returned to participate in second episodes often imposed their previously invented rules, as if they were unalterable and non-negotiable, on their new partners. Nobes discusses his findings with reference to other research in the field, including domain theorists. He concluded that children can say very different things about a rule depending on when, how, and by whom it was established and applied.

Richard De Lisi (2002) wrote an excellent research article using Piaget’s theory as it is associated with educational practices that encourage students’ active participation in the teaching-learning process. The author describes some of Piaget’s ideas about peer relationships, which professional educators may find useful for classroom applications. He provides a framework for evaluating educational practices using Piaget’s theory of cognitive development. The most important point from this article was that teachers need to be mindful of the socio-moral context in which peer learning occurs, and they should consider the impact of peer learning on students’ thoughts and feelings about school-work and their classmates.

Renee M. Casbergue (1998) wrote an interesting research article discussing the changing roles of children’s games and their effects on cognitive development. After discussing Piaget’s views on children’s games, she makes the argument that traditional games like jacks, marbles, and dominoes provide more opportunities to consolidate knowledge and skills, develop a more logical and orderly style of thinking, and establish positions within peer groups better than the solitary, technology-driven, video and computer games that children are playing today. She suggests making these traditional games available and teaching children to play them in school recreation time.

Christian Critique

Piaget’s theory that cognitive development occurs in stages through our active, constructive nature, emphasizes our uniqueness in the world and likeness to God. In contrast to Piaget who assumed that infants are born with no mind at all, Christians believe that infants are born into a sinful world where they are charged at birth with the original sin of Adam. We know from Scripture that Jesus himself came as an infant (Matt 1:23; Luke 2:7), and experienced cognitive development ("And Jesus increased in wisdom and in stature, and in favor with God and with people" Luke 2:52). Human beings are not just passive recipients of the beliefs of others, nor do we simply construct our knowledge necessary to form faith in the absence of any absolute truth. Instead, as Christians we must construct our knowledge of the world from experience, and our knowledge about God from Scripture. The key to living the morally righteous life for those who lived in Old Testament (OT) times was to obey the laws of God, particularly the Ten Commandments. During that time we see a justice perspective with God acting as parent to reward or punish Israel based on whether the law was kept. Jesus summed up the OT law in Matthew 22:37-39 saying, "Love the Lord your God with all your heart and with all your soul and with all your mind ... and [l]ove your neighbor as yourself." Jesus made it clear that he did not come to abolish the OT law (Matt 5:17), and that to love Jesus requires us to keep his commandments (John 14:15). Jesus emphasized a care perspective saying we are to feed the hungry, give drink to the thirsty, take in the stranger, clothe the naked, take care of the sick, and visit the prisoner (Matt 25:35-36). So in terms of our moral development, a balanced view of care and justice appears to be the biblical perspective on our moral development as it relates to the views of Piaget, Kohlberg, and Gilligan.

Piaget’s theory of cognitive development has children assimilating and accommodating information at an early age. There is biblical support for the view that we should have our children involved in the process of assimilating and accommodating God’s Word at an early age as well. Paul writes, "But as for you, continue in what you have learned and firmly believe, knowing those from whom you have learned, and that from childhood you have known the sacred Scriptures, which are able to instruct you for salvation through faith in Jesus Christ" (2 Tim 3:14-15). Our children need to begin to hear and learn Scripture from an early age to be able to assimilate and accommodate these truths as a schema through which to filter what comes into their minds from the world. This is key to formulating faith as adolescents and as adults. The belief necessary for us to become Christians requires us to have a personal encounter with biblical truth in the person of Jesus Christ. Paul writes in Romans 12:2, "Do not be conformed to this age, but be transformed by the renewing of your mind, so that you may discern what is the good, pleasing, and perfect will of God." In this process of being transformed we assimilate and accommodate the absolute Scriptural truth of Jesus as Savior. This may occur through doubt and questioning as we assimilate and accommodate until we arrive at an understanding of this truth. Children often accept God’s truth much more willing than adults, and it is likely that their failure to assimilate and accommodate these truths at an early age impairs their ability to do so later in life. As Christian belief is formulated as part of our schemata, we engage in a conversion that has both rational and emotional components. We accept God’s truth as absolute truth which has authority over our lives. We filter what we experience in the world through the lens of God’s word. As we study the world, subjective knowledge leads us to construct schemas that approximate objective ontological truths as well. We are called in biblical terms to understand God better and to grow as Jesus did with the promise that we will one day see and be with God face to face (Cook, 1999, pp. 219-20).

Piaget’s and the Role of Childhood Games in Development

Jean Piaget observed that childhood games offer a window for understanding the moral development of children. He observed significant gender difference with respect to how children relate to game rules. He found that boys stick to the rules, resorting only to legal elaborations, whereas girls emphasize harmony and continually invent new rules to suit their play. Piaget wrote, "A rule is good so long as the game repays it" (Piaget, 1932, p. 76). When faced with an argument over the rules, girls ended the game, started over, or found something else to do; whereas, boys argued their way through the dispute with continual references to the rules of the game. A high priority for the girls was to preserve the relationships of the players, whereas a high priority for the boys was to maintain the rules. Piaget assumed the boys’ high priority was the standard, and he concluded, "The most superficial observation is sufficient to show that in the main, the legal sense is far less developed in little girls than in boys" (Piaget, 1932, p. 69). By preferring the boys high priority as the norm, Piaget aligned himself with the common cultural view of that time of valuing one moral orientation at the expense of the other, whether the game be childhood play or law (Jack & Jack, 1989, p. 131). More recent study on children’s play confirms that at an early age girls and boys interact differently. Girls choose smaller play groups of two or three best friends. Boys’ groups are larger and tend to center on competitive play. Their play usually involves winning or losing, and their rules are clear. Boys are more willing to enter into adversary relationships with friends and cooperate in game playing with children they dislike. They learn to depersonalize these relationships for the sake of the game. While boys’ games often teach emotional discipline and self-control, girls’s games reinforce nurturant skills, expression of personal feelings, and cooperation rather than competition (Jack & Jack, 1989, p. 131). Based on Piaget’s theory, boys are much more prepared through competitive play than are girls to become advocates in our male dominated legal system (Jack & Jack, 1989, p. 132).

The Role of Game in the Legal System

It should come as no surprise that trials in courts today occur under great stress to the participants. Trials today bear a striking resemblance to the ordeals and games of chance that were used to determine truth in the ancient ecclesiastical and common law courts. Historically, one of the methods used to determine guilt or innocence of an accused was the ordeal (Plucknett, 1956, p. 114). In addition to its use in the courts, the ordeal was adopted by the early Christian church as a psychological test for truth telling. When the veracity of testimony given before the church was questioned, the service book outlined an ordeal, which was a procedure to determine truthfulness. The ordeal required the accused to carry a hot iron by hand over a distance of nine feet. The hand was then wrapped for a period of three days. After that time the bandages were removed. If the hand was clean, then God be praised, the person was being truthful. But if the hand was unhealthy, the person was deemed untruthful. Another ordeal often used for accused clergy was the ordeal of the cursed morsel. This consisted of requiring the accused clergy to swallow a piece of food with a feather concealed inside. If the accused was successful in swallowing the cursed morsel, then he was truthful. But if he choked, he was untruthful (Plucknett, 1956, p. 114). An outgrowth of the ordeal was a bizarre game called the wager of law. It was also a method used to determine truthfulness. To implement the wager of law required the accused to find a certain number of compurgators to attest to his or her truthfulness. These compurgators did not swear to the facts of the case, but only to whether the accused was a truthful person. If the accused could produce the number of compurgators (usually twelve), then he or she was declared truthful. This procedure was used by the Church under the title of "Canonical Purgation" in circumstances where other modes of proof were impossible. The wager of law survived in ecclesiastical courts long after the Reformation (Plucknett, 1956, pp. 114-115). In addition to these games, in the tenth century the Normans introduced trial by battle. In civil cases the battle was generally not fought between the parties themselves, but rather between their respective champions. The champion was usually a tenant of the party who was bound by homage to defend his lord’s title. A judicial duel between champions for each party was used to decide the rights of the parties. The litigant with the victorious champion was the winning party to the lawsuit. The litigant with the defeated champion was the losing party to the lawsuit. Trial by battle became so common that there developed a number of professional champions who offered their fighting services for hire to litigants. The courts arranged the dates and the terms of the battles so that the champions could fit them conveniently into their schedules. In criminal cases the battle was often in person between the accused and the accuser. If a defeated defendant was unpopular and was not slain in the battle, he was often hanged on gallows prepared in advance. Trial by battle was not abolished in England until 1819 (Plucknett, 1956, pp. 116-118).

Although the use of the above mentioned games for obtaining truth and justice would be considered torturous, arbitrary, and capricious in today’s courts, they nevertheless serve as a pretext for our present system of trial by judge or jury. It should not be surprising that the metaphor most often used by attorneys to describe the legal system is that of game. Law professors often use the metaphor to describe the experience that first year law students are about to encounter as they begin the study of law. Law students first see what resembles a quiz show game in the classroom as professors use the Socratic method of propounding question after question to the student to help him or her learn to think like a lawyer. When law students graduate, take the bar, and become active in the legal profession, they are given rules of law and ethics and are told these are the official rules of the game. Not unlike the champions of old, attorneys are hired by litigants to duel it out in the courts in accordance with the rules. The judges or jurors who hear their arguments are bound by oath to determine the truth. Because there are rules to the law game, society expects a single judge or twelve jurors, with all of their biases and prejudices, to weigh all the admissible evidence to determine the truth. They are to use only the evidence, the instructions from the court, and their common sense experience in making their decisions. The phases of the trial, including jury voir dire, opening statement, direct and cross examination, and summation, are used strategically by the attorneys to persuade the jurors to their client’s version of the truth. Attorney strategies may be analogized to a game as the litigants battle for an advantage. The judge instructs the jury on burden of proof using legal terms like beyond a reasonable doubt or greater weight of the evidence. In reality these terms are often misunderstood or ignored. Trials are like a game in that there are winners and losers. Society idealistically labels the outcome justice. However, in the legal game, unless the judge awards fees to the victor by some law that allows the award of fees, winners and loser both suffer the expenses for the time of their legal champions – the attorneys. Winners may win money in the battle of a civil suit, a child in a custody battle, or freedom in a criminal battle. Losers may suffer having to pay money in a civil suit battle, may lose access to a child in a custody battle, or they may be punished by fine or imprisonment in a criminal battle. In a case of murder, the loser of the battle may pay with the highest penalty of all – the death penalty. Modern scientific instruments used to help determine truth, like lie detector tests, are excluded from the evidence of trials. There can be no reference to the ultimate truth contained in Scripture. Psychological tests for truthfulness are likewise not admissible. So in today’s trial, truth often has little to do with the outcome. Many lawyers and judges explain to litigants that a trial is a game of chance. The outcomes often resemble the ordeal, the wager of law, or the trial by battle. All trials involve the loss of time from other activities, stress, expenses, and an uncertain outcome. Outcomes are often compelled by the influence of media reports, the personal biases and prejudices of judges or jurors, or simply through a need for expediency. As one juror related in a case this author tried, "at the end of the day a decision needs to be reached so everyone can go back to a normal life and not have to come back tomorrow." American society in general lives in denial of what actually happens in our courthouses. Many people operate under the misconception that courts work like computers. The facts and law are put before the judge or jury, and the right result is produced from the process every time. They have no concept of how flawed the results are in many cases. Reality only sets in when a real person becomes a litigant and sees the system at work as the game is played out in real life. Litigants often advocate change in the system. However a litigant or former litigant, whether winner or loser, has no credibility to advocate for change because they are viewed as having a vested interest or suffering from sour grapes. So the system goes on perpetuating itself by the tax dollars of a society composed of those who live in denial, those who are ignorant of what is happening, those employed by or earning their living from the system, or those who are participants in the game as litigants or former litigants, whether winners or losers, who for the most part have no credibility to advocate for change.

It is against this backdrop of law as a game that we consider a research study of four attorneys, two females and two males, who were willing to answer questions and be interviewed. For purposes of this paper the male attorneys will be identified as MA1 and MA2, and the female attorneys will be identified as FA1 and FA2. As background, it is noteworthy that FA1 practiced law for only a few years and is now seeking another career; FA2, MA1, and MA2 have had comparable practices, have all been aggressive attorneys for twenty or more years, try some cases, but generally settle most of their cases before trial if possible. In summary of how the research study was conducted, each attorney was requested to write-out their responses to questions related to the types of games they played as children, how the rules of the games were enforced, any arguments or conflicts over the rules including the outcomes, how participants handled losing and winning, their views on whether games played a role in their pre-law training, their views on how games have affected their roles as attorneys, and their views of the legal system.

FA1, an only child, indicated that she played dolls, dress-up and make-believe with a male and female playmates. The only competitive game she remembers playing was checkers with her grandmother, and on one occasion her grandmother had to adjust her attitude about losing. She describes herself as "painfully shy as a child." She says that there were no arguments or conflicts that arose with her friends during play. She describes most of her play as "creative and cooperative." She describes her law practice as more creative and less traditional. She feels that the practice of law "remains more of a boy’s game in many respects. Though the number of female attorneys is much greater than in prior decades, many of the female attorneys I’ve dealt with seem to be trying to live up to male stereotypes of how lawyers should behave." FA1 said that "many lawyers view law as a win/lose game, and that is part of why I left the practice. It doesn’t seem to have much to do with justice." She concludes that "win/win alternate dispute resolution seems woefully lacking," particularly with poor clients family law cases where it is needed most.

FA2, also an only child, states that she and other neighborhood females played games that included cards, monopoly, clue, scrabble, checkers, chess, hop scotch, jacks, kick ball, volleyball, and marbles. She says the "rules were strictly enforce," and there were rare arguments over the rules. When an argument occurred, they would study the printed rules that came with the game to see how to proceed. She says she never had male playmates. For games without printed rules, the female with the most persuasive argument prevailed with respect to the rule to be followed. She says the winners of the games "always bragged, but not loud or long, because we knew we would be playing again, and the winner may be a loser the next day." She feels she learned the "art of persuasion without argument" from playing games as a child. She learned how to get matters resolved without anyone having "hard feelings." She describes the law today as a "good ole boys’ club. Male judges hear cases from former college buddies, friends they play ball with now, and those they socialize with." She says that "women do not have the history on the bench to see that change much. We still have so many older male attorneys who dominate the field, but that is slowly changing." She says that clients expect her to be "outspoken like the men," and they often ask her if she is "afraid to go up against a male lawyer." "I don’t think society sees the legal system as producing justice anymore." She describes attorneys as "hired guns" who are often "forced to compete to win." "We have to hide our efforts to be cooperative lest our clients believe we have sold them out, or did not fight hard for them." FA2 supports more mediation and alternate dispute resolution so there are less trials. She points out the expense and delay of having to wait on a trial.

MA1 was the oldest of three children. The games he played included marbles, kick ball, playing cards, baseball, football, tennis, monopoly, checkers, chess, capture the flag, hide and seek, basketball, and tag. He describes the games as being played with mostly boys, but sometimes there would be a couple of girls. He says that everyone played by the rules. He does not recall any major conflicts over the rules, maybe a line call in tennis. The girls in his neighborhood stood up for themselves. He says his daughter now is more apt to walk away from a game if losing or bored than is his son. He says he tried not to brag when he won, and he kept it inside and "would be stoic" when he lost. He agrees with the view that competitive games are good pre-law training – "they stir the competitive fires that a trial lawyer has to have." MA1 says there is no question that historically the practice of law was wrongly considered a boys’ game, but today it is both a boys’ and girls’ game. He feels that compromises reached through mediation are more just than the results of trials. He says that "fairness and consistent maintenance of the rules are the linchpins of a successful practice, and to be able to sleep well at night." He would like to see more mediations and alternate dispute resolutions used in lieu of trials, and feels that female lawyers can be just as litigious as the men.

MA2, an only child, played marbles, basketball, baseball, football. The games did not include girls. He says that there were disputes and sometimes fights. Most of the time the arguments were resolved by the oldest kid bullying the others, or a parent would intervene. There were a few occasions when the game would break-up because of a fight, and sometimes those fights were provoked by a boy on the losing team. He did not observe girls at play, only his cousins who played mostly with dolls. Sometimes the boys would make wooden trophies for the winners. Many times the losers would cry and feel hurt. He considers competitive games as good pre-law training for the conflicts that trial attorneys face on a daily basis. Unlike men lawyers, women lawyers are not "good losers," and they often "hold grudges and want to get even the next time there is a case with you." He feels the legal system is "changing for the worse with the influx of women lawyers." He describes the profession and legal system as more gender neutral now. He says that "trials are all about winning and losing. We are taught in games that winning is everything, and that is true in lawsuits aw well. Clients of losers go to jail." He says settlement would be good in most cases, but some clients want their day in court. They have a right to that as long as we have a court system." He feels that "good lawyers learn to distance themselves from clients and not take their winning and losing personally. If that is not the case, the law will completely burn you out."

Each attorney was asked to rank ten issues and values that they felt should be most important to the legal system. This part of the study helped to differentiate the attorneys’ views with respect to whether they have a justice perspective or a care perspective. The raw scores for this portion of the study are set forth in the table shown in Figure 1.2.

Figure 1.2: Raw score responses on ranking justice and care issues/values in study.

Conclusions

Although this was a limited study, there are some interesting conclusions that can be drawn using Piaget’s theory. It is interesting that FA1, who played mostly with dolls, and never played competitive games, became so uncomfortable with the winning and losing in the legal system that she left the profession. FA2, MA1, and MA2 all played competitive games and have survived in the profession for twenty or more years. Both FA1 and FA2 felt the legal system remains a boys’ game, and MA1 and MA2 feel it is now gender neutral. Although this may be a matter of perspective, the males’ denial of not wanting to admit to a male biased system may be interfering with their ability to see the gender biased reality of the system. All of the attorneys apparently feel that settling cases is preferable to going to trial. It is interesting that MA2 was the only attorney who spoke of significant conflicts in childhood games, and by the tenor of his responses it is apparent that he is a more contentious attorney than the others. What MA2 said about good lawyers distancing themselves from clients and not taking their winning and losing personally is quite consistent with what Piaget said about boys "depersonalizing the attack."

The interviews and written responses correlated well with how the attorneys ranked the importance of issues and values with respect to the rights or care perspectives. The study by Gilligan & Attanucci (Santrock, 2004, p. 344) reported males and females in their study as not having a clear preference for a care or justice perspective. However, for the attorneys in this study, both males and females placed a higher importance on a justice perspective (total score 67) than a care perspective (total score 153). If we add the total scores for males and females within each perspective, we find a total score for the justice perspective for females was 36 and for males was 31. The total score for the care perspective for females was 74 and for males was 79. Based thereon, there is limited support in this study for the view that female attorneys place more importance on a care perspective than their male counterparts. Interestingly, the scores for FA2, MA1, and MA2, attorneys who had practiced for twenty or more years, were all within two points of each other on justice (17, 16, and 15) and care (38, 39, 40). FA1, who had significantly less experience in the legal system than the other attorneys, placed more importance on the care perspective (36), and less importance on the justice perspective (19), than the other attorneys in the study. This may actually reflect how those outside the legal system may view the legal system as having more of a care perspective than those on the inside of the system.

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