Thinking the Situation into Legal Theory: The Promise of Experimental Parable

In law – legal theory, practice, and education – we find that a powerful way to deepen our understanding of fundamental legal principles is to examine and review their operation in past cases. One of the great benefits of the case method is that it provides the legal community with a common reservoir of elaborate stories showing human lives intersecting with abstract principles, stories that we all draw on when talking (or aruging) with each other about how fundamental principles should be applied to the myriad of unmapped circumstances upon which legal thinking is called to attend. The cases that do this work are not necessarily the most “important” cases in the sense of being landmark or doctrinally innovative. Often the most powerful cases in legal discourse derive their potency – or their frequent use, anyway – from their dramatic fact patterns, from the funny, peculiar parties that inhabit them, or their exquisite exegesis in the hands of a gifted jurist. (Lawyers think of your own favorites, Vosberg v. Putney, Meinhard v. Salmon, any of the greats).

I believe that this extraordinarily powerful method can and should be deployed by legal theorists who are concerned with bringing the lessons of social science – and the “mind sciences” in particular – to legal analysis. We can develop and deploy a canon of particularly evocative studies that provide through their constant re-telling and continual re-examination a deep and shared understanding of the meaning of “situational influence” as we might want to make use of the concept in legal analysis. Consider the parable of the Good Situation, an experimental case I have featured in the Law and Behavioralism seminar I am presently teaching at Santa Clara.

You may be familiar with the story of the Good Samaritan, one of the more famous parables told by Jesus in the New Testament. That story actually emerges in the Gospel of Luke during a dialogue in which Jesus is fielding questions put to him by “a scholar of the law.” The scholar asks Jesus to define who counts as a “neighbor” for the purposes of applying the principle that one should love one’s neighbor as oneself. Jesus replies with the parable: a man was beat up by thieves and left on the road hurt and helpless, a priest came by and kept right on walking, a second man came by and walked on as well. Finally came a man from Samaria, who helped the injured man (even put him up in an inn). “Which of these three . . . was neighbor to the victim?’ Jesus asks. Well, the Good Samaritan, of course. (The scholar of laws answers that it was “the one who treated him with mercy,” to which Jesus replies, “Go and do likewise.”).

The moniker “Good Samaritan” itself is not in the gospel, yet the familiarity of that term in our own society well signifies the dogged human tendency to attribute a person’s actions to their individual disposition (their inherent “goodness” or “fairness” or “selfishness”), often to the exclusion of appreciating the potent influence of external situation in accounting for people’s conduct. That potent influence can be grasped when we turn from the Good Samaritan to the parable of the Good Situation, which comes to us from a study John M. Darley and C. Daniel Batson did in 1973: three groups of seminary students were told that they were to give a brief sermon on a chosen topic to a group that was waiting in a building on the other side of the campus. The first group of seminarians was told that they had to hurry across campus, that they were already late. The second group was told to head right over because they were expected in just a few minutes. A third group was told that they weren’t expected for a little while, but that they might as well head over early. Along the path that the seminarians had to walk to reach their appointment laid a man, hurt and needing help (feigning, for he was a collaborator in the study under way). Now who was the neighborly one?

Of the seminarians in the “high hurry” and “medium hurry” situation, just 10 percent stopped to help the wounded man. But among those in the “low hurry” situation more than 60 percent stopped to help. Who was the neighborly one? The experimental parable reveals that rather than inquire about whom among us is good, we might do better to inquire into which situations are good, in the sense of influencing neighborly behavior.

In the biblical parable, the authority for discerning that the Samaritan was good and that the others were not is confidently given over to common sense and intuition. Jesus had only to ask his interlocutor who the neighborly one was, and the interlocutor gets it right immediately. Who couldn’t? Indeed, the point of the Good Samaritan parable as Jesus told it appears to be that it should be (and is) obvious to the “scholar of laws” what it means to act neighborly. (Indeed, the scholar easily gets its right despite the traditional enmity felt between Jews and Samaritans in the scholar’s society, a rich layer of the biblical story that is largely lost in our contemporary appreciation of the tale). Yet the parable of the Good Situation suggests that discerning the contours of moral (and legal) principles may be much more difficult than our intuition would leave us to believe. If we want to understand neighborliness, it turns out, we’re going to have to talk about the neighborhood, and not just the neighbors. The authority for the conclusion this time comes not from intuition, but from science. Indeed, this parable presses the importance of holding intuition in suspicion in order to detect the influence not only of situation, but of situational manipulation – for consider the pivotal part played in the parable by the experimenters’ framing of the errand, and by the collaborating wounded man. The parable well reveals that situation is not only more powerful than we tend to appreciate, but also that situation can be influenced, harnessed, and deployed in potent and predictable ways to shape human behavior that most of us, using common sense and intuition would tend to attribute to disposition. And in law we may be called upon to examine the influence of situation more perniciously or exploitively deployed than in the controlled social science evident in our parable.

Just as in conventional legal analysis, the examination of particular situations will always require reference to particularized cases and studies, operationalizing broader understandings. But sometimes a broad orientation helps to identify which narrower cases should be examined, and from which angles. Evocative tales like the Good Situation can help think such a situationist orientation into law.