Monday, May 26, 2008
Posted by Jeff Lipshaw
The recent debate between Brian Leiter and Rick Hills about the honorary degree granted to Phyllis Schlafly at Washington University raised some interesting issues about the relationship between truth and civility. Given that when we take off our scholar hats and put on our teacher hats, we are training lawyers for whom civility in the profession is a long-standing issue (merely look at some of the You Tube deposition disasters for empirical evidence of this), I don't think it's merely an academic issue. (By the way, I thought Dan Markel's contribution was the best on the issue of civility; as to Schlafly, her views make my skin crawl, but I don't get the whole "honorary degree" thing anyway. UPDATE: Paul Horwitz has a post on this subject, and it is so sensible I wish I had written it.)
Brian Leiter made two statements that are troubling to me. First, he said, "[t]here is nothing wrong with dealing harshly with really bad arguments; that's precisely what one does if one is serious about ideas and about truth." Second, he observed that his opponent "made terrible arguments, and I demonstrated that they were, indeed, terrible. There was nothing impolite about it, unless you consider the truth impolite." Assuming "truth" resides not just in academic debate, but in courtrooms, board rooms, representative assemblies, neighborhoods, and families, presumably the pursuit of truth there would entitle one to deal with really bad arguments harshly and impolitely. My intuition says that's a recipe for disaster (having just had the annual meeting of our homeowners' association in which we discussed whether to remove the "speed bumps" from our little road). (Coincidentally, see, via Larry Solum, Joseph Singer's article "Normative Methods for Lawyers," which discusses the pragmatics of making normative argument that nevertheless respects both winners and losers.)
It's the invocation of "truth" that needs unpacking. One cannot really do justice to the issue in a blog post, but Leiter has written extensively on objectivity in morality, and I think it's fair to say he views moral or value issues to be capable of truth determination, i.e. that moral facts exist objectively (i.e. they are "mind-independent" and make a difference causally in the empirical world). According to Leiter, "what suffices for objectivity in evaluative matters is that we be able to subject our evaluative stances to reasoned discussion." ("Objectivity, Morality, and Adjudication" in Objectivity in Law and Morals.) [UPDATE: I take the correction in the comments - a better way to summarize the view is that if moral facts exist, they will only exist as part of the natural empirical world, and the closest analog to objective scientific inquiry is reasoned discussion.]
The source of my puzzlement about civility lies in the way I would evaluate the truth issue. At one end of the spectrum, some matters really are a matter of objective truth or falsity. Did Schlafly take or not take a particular position, or make a particular statement? At the other end, we are not talking about facts at all, but about values. "Should Washington University grant an honorary degree?" is not a question about facts or objects, but about the "ought." I believe there are values that are capable of reasoned determination, and they may well be universal, but they differ categorically from facts. Somewhere in the middle is what I would call categorization, which is neither a matter of objective fact, nor of values, but of the very difficult field of cognitive theory, namely how we process categories, models, metaphors, and judgment. The issue of rule-following (both inductive reasoning to determine the rule, and then what Kant called the determinant judgment to apply the rule to the next case) is neither a matter of empirical objectivity nor a question of the ought, but something else again. "Is Schlafly a bigot?" falls into that area. First we have to determine inductively (i.e. establish a rule) what a bigot is ("shew the children a game. . ."), not an easy task in itself (cf., "is Schlafly a Republican?"), and then make a judgment whether what Schlafly did qualifies her with the tag of bigot. We might even ask whether "is Schlafly a bigot?" is a very good question, or one we ought to ask. (If I'm what Leiter calls a "Non-Naturalist," I'm a very limited one, by the way. It's just that dealing with what I don't know and seems impossible to nail down is so humbling.)
I have a hard time seeing how any of these matters ought to be dealt with "harshly." Only the first kind of issue is really true or false, and dealing with it harshly has to do more with venting the venter's irritation than either teaching or correcting or debating. If one draws a line, and says that "really bad arguments" deserve incivility or impoliteness or harshness, then we are back to the objective/subjective judgment issue as to what constitutes a "really bad argument," as to which in most of these cases, reasonable people can disagree. As to values, I think civility is right up there, maybe even higher than honesty (when my daughter was three, she identified one of our friends, who was within earshot, as "that fat lady" which was totally honest, and understandable from a three year old, but uncivil if uttered by an adult). But if we blur the fact/value distinction, and make the determination of incivility a matter of truth, and incivility can be dealt with harshly (if one is serious about truth), then either harshness is civil, which seems intuitively wrong (as a matter of linguistic categorization) or I am permitted to violate my own values in order to promote precisely the value I am violating!
As I said, Dan Markel nailed this with the untranslatable reference to being menschy.