December 22, 2011
Sticks and stones may break my bones ....
In case you've missed the name-calling drama playing out in the legal scholar blogosphere, here's a recap:
1. Stephen Bainbridge takes issue with John Coffee calling him (and Larry Ribstein & Roberta Romano) names (here).
2. My first reaction to this was that it was somewhat of an odd response, given how many times Bainbridge has seen fit to call people idiots and other names on his blog. Matt Bodie beat me to the punch, however, here.
3. Bainbridge responds by claiming it's okay to call people names in blog posts (here).
Personally, I'm unclear as to how a lack of civility is ever really defensible. Bainbridge quotes Brian Leiter as saying (here):
Some philosophers with Kantian intuitions think that civility is always a general requirement of respect for persons, an intuition that I do not share, and for which I can not think of any compelling arguments, and many objectionable counter-examples, like those in the text: treating Nazis in Weimar with civility seems to me a moral failing on the part of their opponents, not a requirement of respect. Such a demanding conception of civility would also be incompatible with derisive polemics (think H.L. Mencken), which often play an important role in political and social life.
My answer is simply that the moral failing in the Weimar case would be to not hold the Nazis accountable. Using their behavior as an excuse to act in an uncivilized manner yourself strikes me as simply another form of moral failing. And saying that derisive polemics have worked in the past is not the same thing as saying that they represent the best way to get things done. That's sort of like saying we shouldn't strive to keep our anger in check because it can sometimes serve as a proxy for clarity.
We are currently struggling as a nation with competing ideologies that sometimes make it seem like we might be stuck in standoff mode for much longer than is good for anyone. A lack of civility has been blamed for inflaming this standoff, and I believe we have a responsibility as law professors to not place our stamp of approval on that type of behavior--in our scholarship or our blogging. Of course, even those of us who agree with this ideal will frequently fall short (particularly in blog posts and during live presentations) because we are ultimately all human and therefore, I believe, all greatly flawed by definition. Nonetheless, I believe civility is a goal worth striving for in all our affairs.
ADDENDUM (12/22): In re-reading my post, I realized that I left out what I hope would be obvious but may nonetheless be better stated affirmatively: If sacrificing civility could be shown to be somehow necessary in order to stop the Nazis, then I agree it would be a moral failing to cling to civility. However, I consider this to be a false dichotomy and believe that it is possible to effectively oppose evil without sacrificing civilized behavior. Obviously, much of this turns on one's definition of civilized behavior. However, I think it is fair to say that one need not spit on someone or insult them in order to, for example, justifiably lock them up or even kill them in self-defense. I realize I've now drifted far afield of the issue regarding civility in scholarship versus blogging, but re-reading my post just left such a bad taste in my mouth that I felt compelled to clear up any confusion I may have created. I also acknowledge that I may yet be convinced that there are indeed situations where a choice must be made between civility and justice, but I'll leave that for another day.