Working paper on
Modes of reasoning,
problem-solving, and conflict resolution
People reason and solve problems in a variety of ways, but legal education
generally values and develops only a few of these. Policy analyses and ethical
standards are therefore impoverished, and students miss opportunities to
develop the broader range of skills necessary for professional excellence
and personal growth.
The most developed analyses of modes of reasoning have focused on moral
reasoning. Lawrence Kohlbergs foundational work on moral development describes
the increasing complexity with which individuals reason about justice when
responding independently to hypothetical dilemmas. Kohlberg defined moral
reasoning with regard to justice, and he assessed it by analyzing individuals discussion of equality, fairness, and reciprocal rights.
Though widely respected and cited, Kohlbergs work has been
criticized for its attention to only one mode of reasoning, for its use of decontextualized hypotheticals, and for its focus on moral thought, rather than moral action. Subsequent research indicates that when reasoning about
moral dilemmas, individuals attend to human relations as well as to justice, that they think differently when they respond to hypotheticals than when
they reflect on their experiences or act in the world, and that there are significant differences between independent and dialogic problem-solving.
Working from Piagets groundbreaking model of the development of logical-mathematical thinking in children and adolescents, Kohlbergs
theory of moral development describes a universal and hierarchical sequence of six stages of moral reasoning.These stages describe the development of individuals thinking about what is right and reasons for doing right. According to Kohlberg, moral development
depends on logical development and on the development of social perspective-taking.
As there is vertical development in each of these domains, there is horizontal development from the logical to the social to the moral. With each new stage of social-perspective, one develops a new understanding of what is right.
At the earliest stages of development, a child has a concrete individual
social perspective. She considers her own interests and those of a few other individuals; she follows rules when they serve her interests. Following
these preconventional stages of moral reasoning, the child develops a member-of-society social perspective and more conventional moral judgments. She subordinates
individual interests to those of a relationship or group; she follows rules
because to do so is good for everyone. A prior-to-society social perspective underlies principled moral judgment. Individuals who can take the perspective of any rational moral individual can commit
themselves to the principles and values which underlie the rules and laws of a society.
To distinguish the unique domain of moral judgment from that of social perspective,
Kohlberg refers to the work of moral philosophers who, he says, have identified
four universal elements of any moral decision: normative order, or references
to the rules and roles of the social order; utility consequences, or the
good and bad effects on the welfare of others or the self; justice/fairness,
or concerns about liberty, equality, reciprocity, and contract; and, ideal-self
or concerns about being a good person. Of the four, Kohlberg argues, A
persons sense of justice is what is most distinctively and fundamentally moral (184).
Kohlberg assessed individuals moral development using one of three versions
of an interview comprised of three hypothetical moral dilemmas. For example,
in one interview respondents are asked to consider whether and why Heinz
should or should not steal a drug to save his wife from a life-threatening
illness. Individuals responses to questions about these dilemmas are compared
to prototypical responses of individuals at particular stages of moral reasoning.
Kohlberg noted that individuals at any of these levels might use words such
as rights, morality, conscience etc. What is significant is how individuals
use these words to describe their thinking. For example, a child reasoning
at a preconventional level might say that is isnt right to steal because
it is against the law and someone might see you. At a conventional level,
an individual might also argue that it isnt right to steal because it
is against the law and laws are necessary for society to function. An individual
at a postconventional level might argue that stealing is against the law
because it is immoral.
In many respects Kohlbergs work describes the intellectual work of law
school wherein students are expected to reason about decontextualized situations
to determine the applicability of rules and laws in pursuit of justice.
Though Kohlberg believed he had described the universal mode of moral reasoning,
his empirical findings are problematic. Given his sequence of stages, American
women and members of other cultures often appear to be less morally developed
than white males from the U.S. Kohlbergs theory, based on research with
highly educated, middle-class white males, now appears to have described
only one way of reasoning about moral problems.
Exploring the relationship between moral reasoning and moral action, Carol
Gilligan asked college students and adult women to describe moral problems
that they had experienced. In addition to a concern for justice, Gilligan
heard them express a concern for connection and responsiveness which she
called care. In subsequent studies, Gilligan and her colleagues found that
most participants reasoned with regard to both justice and care; they also
found that many of the participants whose dominant voice was justice were
men and that most of the participants whose dominant voice was care were
From interviews in which participants described their experiences of moral
dilemmas, Gilligan derived stages of the development of care parallel to
those of the development of justice as described by Kohlberg. At the earliest
stages of development, care refers to caring for the needs and desires of
the self. Later such concern is judged selfish, and responsibility and goodness
are defined in terms of caring for others. Finally, care is defined in terms
of concern for others needs and
perspectives as well as ones own. In her
early work, Gilligan argued that these stages reflected a process of maturation.
She and others now believe that the development of the voice of care reflects
the position of women in the social-political context. As children, girls
are comfortable voicing what they know about others and relationships, but
as adolescents, they become increasingly cognizant of social pressures to
be good women to have good thoughts and to be nice and kind
to everyone. At that point, many seem to enter a relational impasse: fearing
that their relationships cannot weather their honesty, the girls withdraw
from their relationships to save them. Some women seem to remain at this
impasse, unable to bring the most central aspects of themselves to their
relationships (Brown, 1989; Brown & Gilligan, 1992; Rogers, 1993).
Gilligans work suggests that there are at least two modes of moral reasoning justice and care. Either can be overlooked or attended to in the problems individuals
describe and by the questions researchers raise or dont raise. And, each
has its liabilities: the detachment associated with mature justice reasoning
may result in a lack of responsiveness to need, and the attention to need
associated with mature care reasoning may result in a lack of attention
to fairness. Given that individuals are capable of using both modes, one
might redefine moral maturity with regard to both. Finally, Gilligan and
Attanucci suggest, one might promote maturity through the recognition
that there is another way to look at a problem (236).
Norma Haan also took exception to Kohlbergs claim to have identified the
universal mode of moral reasoning and his attention to moral judgment. Haan
contrasts Kohlbergs theory of moral reasoning with her theory of moral
interaction which is based on the belief that interaction is the distinctive
feature of everyday moral consciousness (1991, 255). Thus, from the
perspective of the theory of moral interaction, morality is seen, not as
a judgmental competence, but as a social, emotional dialectic of practical
reasoning among people. Its distinctive feature and its ground is
the attempt people make to equalize their relationship during disputes and
in their conclusions. (1985, 996-997)
Though Haan contrasts her work with that of Kohlberg, her emphasis on the
goals of equality and moral balance is quite similar
to Kohlbergs justice reasoning. And, her acknowledgement of individuals
desire to avoid hurt and relational decay is quite
similar to Gilligans care reasoning. The more obvious distinction between
Haans work and that of Gilligan and Kohlberg is her emphasis on the dialogic
nature of moral problem-solving and her perspective on development. While
Gilligan and Kohlberg interview individuals in isolation, Haan organizes
groups of participants to discuss moral dilemmas and to participate in moral
Haans levels of moral activity refer to the quality with which individuals
participate in dialogues which consider the perspectives of self and others
and which achieve mutually satisfying solutions. Unlike Kohlberg and Gilligans stages, Haans levels describe
situational functioning, not general cognitive capacity. Haan notes that research suggests that even very young children
understand moral balance, despite the fact that their limited social power
and experience make it difficult for them to participate in its achievement.
In addition, much research shows that adolescents and adults respond to
different moral situations with different degrees of concern for justice
and for moral balance.
Individuals moral responses to particular situations seem to be affected
by their habitual and situational responses to stress, by the group process,
and by characteristics of the moral problem. In general Haan differentiates
coping responses, which involve purpose, choice, flexibility, and realistic
assessments of the situation, from defending responses, which are rigid,
negating, and distorting and are based on unrealistic assessments of the
situation and on the magical belief that the anxiety can be relieved
without directly addressing the problem (1977, 34). In her research
on moral behavior, Haan has consistently found that individuals who are
able to cope rather than defend when dealing with stressful moral problems
were able to demonstrate higher levels of moral action. In particular, individuals who remained open to possibilities,
suppressed their emotions, or were empathic
also tended to demonstrate high levels of moral action, while individuals
who isolated facts and feelings, used abstractions to avoid their feelings,
or displaced blame or bad feeling, also tended to demonstrate lower levels
of moral action. Haan also found that members of groups which were led and thus more dialogic
demonstrated higher levels of moral response than
members of dominated groups which were less dialogic. Though
there has been relatively little work on the relationship between moral
problems and the quality of their resolution, Haan and her colleagues found
that participants moral scores were highest when they were responding to
situations which were most distant from their experience, situations in
which they were responding vicariously.
Though Haans research suggests that moral response is not determined by
moral capacity, it does suggest that moral response may be determined by
the development of other morally neutral capacities:
It could be the case that the young only seem to increase in moral capacity,
when actually their strategies of stress reduction and their problem solving
may account for the improvement in concert with an increase in the scope
of their social power and responsibility. (1991, 265)
Just as Gilligans work suggests that there are at least two modes of moral
reasoning, Haans work suggests that there are at least two modes of moral
problem-solving. Haans work also suggests that moral action is influenced
not simply by ones capacity for complex thought,
but also by ones capacity for coping with stress, for participating in dialogue, and for resolving conflict.
In total, the work of Kohlberg, Gilligan, and Haan speak to the importance
of complex and multifaceted perspectives on reasoning, problem-solving,
and conflict resolution. We believe that the relatively limited perspective
reflected in the common practices of legal education alienates students
and limits their development. Students, particularly women and students
of color, may find an exclusive concern for justice, hypothetical situations,
and individual problem-solving alienating and inhumane. In fact, women and
students of color may be stereotype vulnerable in the practices most common
and most valued by legal education. Our goal is to maximize student involvement
and development by maximizing opportunities for the use and development
of diverse modes of reasoning, problem-solving, and conflict resolution.
We believe that students need opportunities to develop their capacities
for attending to justice and care. Thus, they need opportunities
to reflect on hypotheticals and on their own moral experiences with regard
to the application of principles and the maintenance of relationship. Students
also need opportunities to participate in dialogues in which they fully
experience each others conflicting views .. arbitrate between themselves
and others as moral objects .. restore and reach moral balances ..
[and] enact their agreements. (Haan, 1978, 301)
Through such experiences, students can be expected to develop their capacities
for reasoning as well as their capacities to cope with stress and to resolve conflicts.
In addition, scholars in the fields of law and business have speculated
that policy analyses and ethical standards within the two professions are impoverished because both emphasize rule-based reasoning and neglect relational reasoning (Bender, 1988; Davis, 1991; Finley, 1989; Frug, 1985; Gordon, 1987; Paine, 1991, 1994). These scholars argue that attention to both rules and relationships seems optimal in the pursuit of just policies and ethical practices. We agree. We believe that facility in multiple modes of reasoning, problem-solving, and conflict resolution is the optimum condition from which to develop policy and practice law.