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The Tyranny of the Subjective

We are living in socially and politically bewildering times. One of the reasons for this is the sheer number of other people’s lives we are touched by on account of exponential developments in communications. The early 21st Century – perhaps specifically the second decade of it – will, I suspect, be remembered for the centrality of the subjective narrative, or what has become known as the ‘lived experience.’

There is nothing wrong with a flourishing of narratives, per se. We all have our stories to tell and, now more than ever, the means with which to tell them. We must, however, remain vigilant. The proliferation of this aspect of the social ecosystem impacts other areas, and granting the subjective narrative sacred status diminishes the power of other important ways of understanding the world.

In a recent post for Arc Digital, Ryan Huber argued that the emphasis placed on personal experience in political activism, such as the role high school students are playing as commentators in the gun control debate, comes at the expense of an emphasis on expertise.

An increasingly individual and emotional interpretation of reality has become the norm in public debates and disagreements, as the opinion of experts  – with a distinctly different kind of “experience” under their belts  – has come to mean less and less.

The primacy of subjectivity is by no means limited to politics. It now permeates the framework through which we have traditionally mediated our competing narratives. Journalism, academia, science, and law are all affected. In short, any institution that exists to accommodate competing perspectives is being undermined by a new paradigm that privileges the subjective ‘lived experience.’ And, in the process, the meta-values which have traditionally enabled us to transcend our differing subjective experiences suffer. Foundational principles such as audi alteram partem (listen to the other side), the presumption of innocence, proportionality, empiricism, and even the rule of law now must bow before the sovereignty of the subjective.

The realization that we are all imprisoned in our own subjective worlds – the protagonists of dramas in which everyone else plays a supporting role – has long taxed philosophers. Some, such as Irish philosopher George Berkeley (1685-1753), have gone so far as to suggest that the material world doesn’t even exist, and that our ‘lived experiences’ are simply played out in our minds. Most of us are sufficiently convinced by the idea of material reality to reject Berkeley’s position. Nevertheless, even materialists are condemned to a life of epistemological isolation which they must learn to think beyond if they are to comprehend anything other than a cacophony of contradictory points of view. As defence attorney Atticus Finch advises his six-year-old daughter Scout in Harper Lee’s 1969 novel, To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view . . . until you climb in his skin and walk around in it.”

On a societal level, we have moved beyond empathy and institutionalized procedural norms though which competing narratives can be mediated. Consider, for instance, the courtroom trial. By parsing a multiplicity of subjective experiences through legal machinery that uses rules of evidence and procedure, a trial strives to produce an ‘objective’ outcome which, generally speaking, society is content to accept. It provides a mechanism for dispute resolution that enables us to live together in community.

However, of late, a variety of ideas have begun to disfigure and undermine the search for objectivity and understanding. Among these is a preference for what have come to be called ‘traditionally marginalized narratives.’ This change to the epistemological ecosystem is not a random mutation, nor is it simply a function of increased use of social media. Rather, it is driven, at least in part, by a concerted and ostensibly well-intentioned effort to privilege voices hitherto excluded, oppressed, or victimized. These changes are, therefore, entangled in identity politics and a progressive doctrine of ‘intersectionality.’

Just as there is nothing wrong with a proliferation of narratives in principle, there is nothing wrong with a growing awareness of historical injustice. On the contrary, this is a positive development; naming a problem is the necessary first step towards addressing it. However, victimhood narratives do not and must not render all other considerations insignificant.

Audi Alteram Partem

Audi alteram partem is the Latin for ‘listen to the other side,’ or ‘let the other side be heard as well.’ This principle is foundational to our understanding of truth and justice; it is the bedrock of our legal and political systems, and it is indispensable to scrupulous journalism and academic rigor. It can be found in texts dating as far back as Aeschylus’s play The Eumenides, written in the 5th Century BC. Orestes is accused of murder and the Goddess Athena persuades the deities of vengeance who were pursuing him to accept a legal process which will allow all sides to have their say. She decrees that now and forever the court of judges will exist to serve the people.

It is not hard to see how and why this principle became a salient part of what we understand to be a civilized social order. Even squabbling pre-schoolers will feel a sense of injustice if a parent or teacher only listens to one side of their quarrel. This is not because they have been taught the meaning of a Latin phrase like audi alteram partem, but because that phrase articulates an innate grasp of fairness which we are able to intuit from a very young age.

It is nevertheless a principle asked to give way to the sanctity of ‘lived experiences’ with increasing frequency. Safe spaces and no-platforming, for instance, may be the product of benign motivations – to protect subjective narratives from the ‘violence’ of opposing views – but they are the antithesis of audi alteram partem. Instead, they are examples of what Jonathan Haidt, writing in The Atlantic, has called “vindictive protectiveness.” This, of course, tears the very cloth from which academia is supposed to be cut – the weave of thesis and antithesis to produce a synthesis of understanding. The idea that an academic or student should seek to insulate himself from contrary opinion ought to be preposterous, but unfortunately, it no longer is.

Consider the furore that erupted last year following the publication of an article by Bruce Gilley entitled “The Case for Colonialism” in the Third World Quarterly journal. The ensuing outcry led the publisher to conduct a thorough investigation into the peer review process to which the article was subject. Ultimately, the article was withdrawn; not because the standards for publication had not been met, but because “the journal editor has subsequently received serious and credible threats of personal violence.”

As with any academic paper, there were no doubt flaws in the author’s reasoning and analysis which might have warranted a considered and thoughtful rebuttal. Indeed, some critics did argue that Gilley’s article was an example of weak scholarship. But although rebuttal was the appropriate scholarly response, it was retraction at which the social media-driven campaign was aimed — Gilley’s article was described as an insult, brutalizing, and accused of endangering student safety, none of which bears on the accuracy or coherence of his arguments. Censorship rather than the back-and-forth of scholarship prevailed.

Earlier in 2017, a similar incident occurred when Rebecca Tuvel’s paper “In Defense of Transracialism” was published in a feminist-philosophy journal. An apology for publishing it was made on Facebook on behalf of “a majority” of the associate editors following claims that Tuvel’s argument “enacts violence and perpetuates harm.” The editor-in-chief, Sally Scholz, however, stood by it. The article was controversial because, like the Gilley article, it forwarded taboo arguments and conclusions which, it was said, violated the ‘lived experiences’ of minorities.

If the academic method is no longer acceptable within some areas of academia, then it should be no surprise to find it struggling outside of that domain. This was made particularly evident by the so-called Google memo, written by James Damore in an attempt to bring the available academic literature on sex differences to bear on a work place discussion of the company’s diversity initiatives. Whether or not Damore got the science right remains a matter of (academic) debate among specialists. Some said he did and some said he didn’t. But, as the bioethicist Peter Singer noted in an article for the NY Daily News, whether he got it right or wrong was not the issue. The really important question was whether or not a Google employee should be allowed to say what he said.

In a world in which audi alteram partem is a foundational norm, clearly he ought to have been allowed to offer his view, just as Bruce Gilley ought to have been allowed to publish his. If a hypothesis is reasonable enough to pass a peer review process, it ought not to be taboo to debate it. This is particularly important when those seeking to engage in debate are drawing on empirical evidence. As Singer wrote of Damore’s memo, “it is not some twisted, crazy view. There are serious articles, published in leading peer-reviewed scientific journals, supporting it.” Any worldview that seeks to unanchor us from empiricism is anything but progressive.

Using censorship to protect the narratives of people who have suffered or been discriminated against is ludicrous. Debate does not invalidate people’s experiences; they are what they are regardless of what anyone else says. Furthermore, Gilley, Tuvel, and Damore were not saying that nobody suffered under colonialism, or that nobody has suffered on account of being transgender, or that no woman has been discriminated against in the workplace. Those experiences remain consistent with academic analysis of the broader subject matter. But those narratives really are undermined when they are used to justify censorship. Where sympathy is appropriate, a feeling of resentment grows instead, along with concern about the creeping influence of an intolerant and prescriptive ideology dedicated to smothering free inquiry.

We listen to both sides in a courtroom for the same reason we listen to both of the squabbling preschoolers. Audi alteram partem is central to the Anglo-American adversarial legal system and it is therefore likewise vulnerable to the claim that arguments which might cause offense must be disqualified. When same-sex marriage came before the U.S. Supreme Court in 2015, none of the leading law firms was willing to represent the side opposing it. The lawyer who did eventually take the case came from a medium-sized firm in Michigan, which distanced itself from his involvement.

Why wouldn’t elite lawyers take on the case? An article in the New York Times article offered this explanation:

“Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

One would hope that the best talent from the best law schools would recognize the centrality of equality of arms to a well functioning adversarial legal system. And, furthermore, that they would recognize the necessary distinction between a lawyer’s personal beliefs and the arguments she submits on behalf of her client to a courtroom. While respecting people and the ways in which they differ is no doubt important, it is not at all clear that this consideration should override audi alteram partem, or that respect and diversity are best served by representing only one side of an argument. If the best talent from the best law schools are not willing to uphold the fundamental norms underpinning the system in which they wish to make a living, then I don’t know who will.

This could not happen in England and Wales where a ‘cab-rank rule’ obliges a barrister to accept any case appropriate to his or her experience, seniority, and area of practice, irrespective of:

  • The identity of the client.
  • The nature of the case to which the instructions relate.
  • Whether the client is paying privately or is publicly funded.
  • Any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

The cab-rank rule is named after the tradition that the driver at the front of a queue of taxicabs should take the next passenger seeking a ride. It is therefore antithetical to discrimination. It protects people in need of a lawyer (or a taxi) and it protects barristers from being personally linked to the cause or conduct of the clients they represent. In countries without such a codified tradition, however, it is a principle protected only by common sense and the commitment of lawyers to the integrity and fairness of their own profession. In an era of online mob rule, this protection is simply not enough; it is too easy to organize boycotts of businesses deemed to be ideologically unsatisfactory.

Lady Justice, the Old Bailey, London.

The Presumption of Innocence, Proportionality, and the Rule of Law

No less indispensable to justice, but ‘problematic’ when the ‘lived experience’ is sacrosanct, is the presumption of innocence. A recent move towards ‘victim-centered’ criminal investigations is intended to soften the prosecutorial experience for victims of sexual abuse. The price of such a shift in emphasis is negligible, it is claimed, because most people who make accusations of sexual assault are telling the truth. However, there is a big difference between most and all.

The Center for Prosecutor Integrity has listed its concerns about the erosion of the presumption of innocence, among which is a document issued by the Department of Justice and Police Executive Research Forum which instructs investigators to hand “control of the process back to the victim” and allow the complainant “to request certain investigative steps not be conducted.” The implication is that placing too much emphasis on investigating or verifying a victim’s claims would be improper. The erosion of the presumption of innocence is particularly troubling in the era of #MeToo, because the welcome flood of genuine stories of abuse is no doubt polluted by a few malicious and opportunistic accusations.

Proportionality, meanwhile, is a criterion of fairness and justice applicable in all areas of the law, from self-defense and the use of military force, to the adjudication of constitutional and human rights, as well as the apportionment of punishment for a given crime. Like audi alteram partem, proportionality is so fundamental that its absence may be intuited even by small children. It has ancient roots in the concept of lex talionis, or the law of retaliation and can be found in the Code of Hammurabi. But perhaps its most famous formulation appears in the Hebrew Bible as “an eye for an eye.” Although this idea sounds barbaric to modern ears, the underlying point was that only an eye, and no more than an eye, must be forfeited for an eye taken. An upper limit is set which prevents society collapsing back into a limitless cycle of vengeance and vendetta.

In the modern era, proportionality was first developed in depth by the German courts. The German principle of proportionality, Verhaeltnismaessigkeit, went on to heavily influence European law, and in particular the European Convention on Human Rights, where it is used to balance the rights of the individual with the interests of the community. More generally though, proportionality is central to any jurisdiction that seeks to bring coherence to sentencing by ensuring that the punishment fits the crime. It is obviously not an exact science, but detailed sentencing guidelines exist to ensure consistency between what person A gets for stealing a loaf of bread and what person B gets for stealing a loaf of bread, and moreover, that Person C, who has committed multiple violent burglaries, gets substantially more than a bread thief. There is, therefore, both a horizontal and a vertical dimension to proportionality in sentencing. But hashtag justice sometimes strives to muddy or obviate such distinctions. As we saw during the furious #MeToo debates, inappropriate touching was often put into the same category as the most heinous kinds of rape and sexual assault, along with everything in-between.

Audi alteram partem, the presumption of innocence, and proportionality all sit within the broader framework of the rule of law – the notion that we are all subject to the same laws, and not to the arbitrary whims of those in power. The role that social media has come to play in the meting out of justice represents an erosion of the rule of law. It is, in a sense, a return to a kind of mob rule. Consequently, many accused people nowadays get nowhere near a courtroom before their Human Resources department has passed judgement. The standard response to accusations of any kind of inappropriate behavior seems to be summary dismissal. It’s unlikely that this is because employers lack faith in the criminal justice system, but rather because they fear what the social media repercussions might be for insisting that the legal process run its course.

An Era of Reckoning

To the above, some might reply that we are living in exceptional times in which the injustices of the old order are being called out and challenged. Staying fully focussed on people’s ‘lived experiences’ is the means by which we work towards justice. If the cost of progress is a little bit of censorship here, a little less proportionality there, then so be it.

But that argument fails to appreciate that justice is a function of objectivity, not subjectivity. In To Kill a Mockingbird, the subjective (and false) narrative of a white woman was privileged over that of Tom Robinson, a black man. The trial suffered from an excess of subjectivity, not an excess of objectivity. Atticus Finch was the hero because he – like Athena, two and a half millennia earlier – insisted that justice demanded that both sides of the case must be heard. He understood and insisted upon the importance of an objective search for truth.

In his book The Moral Arc: How Science Makes Us Better People, Michael Shermer explains how the moral progress made by humankind is attributable to abstract reasoning, rationality, empiricism, skepticism, and a scientific methodology. In short, it is a commitment to objectivity which ensures that, as Martin Luther King proclaimed (citing the 19th century clergyman Theodore Parker), “the arc of the moral universe is long but it bends towards justice.”

Our fundamental norms of justice are instantiated in our legal framework, because they are part of a cultural framework that has produced demonstrable progress. Perhaps some are happy to forsake this approach in favor of ‘lived experiences’ secure in the belief that, once the promised land has been reached and the scales rebalanced, ancient values of justice can be reinstated. Not only does this do nothing to correct the injustices meted out in the meantime, but it risks allowing the new order to be internalized. The cost of such a shift would be steep.

Thomas Hobbes described the pre-societal ‘State of Nature’ as one in which there is neither justice nor injustice and neither morality nor immorality, because each person is absolutely free to pursue his own self-interest and survival. The price of this extreme form of freedom, however, was a life Hobbes famously described as “solitary, poor, nasty, brutish and short.” And so people decided that the rational thing to do was to cooperate; to give up some of their liberty in order to form a mutually beneficial social contract, under which all are subject to the same rules, and are consequently far more likely to flourish. Our understanding of morality and justice are functions of this social contract. The 21st Century tyranny of the subjective returns us to a version of the Hobbesian State of Nature – a nasty and brutish way of life in which we are absolutely free to insist on the primacy of our ‘lived experiences’ without the need to cooperate or compromise.

We need to recommit ourselves to the values which enable us to co-exist as communities. From the squabbling preschoolers to the person accused of inappropriate conduct in the workplace, we need to uphold the principles of audi alteram partem, proportionality, the presumption of innocence, and the rule of law. Furthermore, when we find ourselves debating with others we should welcome contrary views as part of the process of discerning what is true and broadening our own understanding, and we should welcome appeals to empirical evidence and the scientific method as indispensable to our moral progress.

None of this need be a refutation of any individual’s ‘lived experience.’ It is simply an insistence that in order to flourish the ‘lived experience’ cannot be the first and the last word in any dispute. Appeals to ideas such as respect, inclusivity, and diversity are not enough unless they come replete with a procedural framework for dispute resolution to replace and improve upon the framework developed over millennia. Such a procedural framework must be a priori to any person’s substantive, ideological vision.

I am in no way disputing that our societies have operated unjustly insofar as gender, race, sexuality, religion and so forth have ranked higher than capability and content of character in determining life chances. That is not, however, solved by a reliance on subjectivity. It is solved by insisting upon the primacy of the objective approach.

Featured Pic: The Remorse of Orestes (1862) by William-Adolphe Bouguereau

 

Correction March 19, 2018: An earlier version of this article incorrectly stated that Rebecca Tuvel’s paper “In Defense of Transracialism” had been retracted. The text has been amended.

 

Elizabeth Finne lives in Norfolk, Virginia. She moved to the U.S. from the U.K. – where she was a government lawyer – 10 years ago. Her interest is in the values and ideas underpinning legal and political systems, with particular reference to the contrasts between the U.S. and the U.K. She is licensed to practice law in both those countries, but spends her days looking after her four children, adjuncting in philosophy, and writing. Follow her on Medium medium.com/@elizabethrachelfinne or on Twitter @FinneElizabeth

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49 Comments

    • You are right D, thank you for pointing this out. An apology for publishing the article was made on behalf of a majority of the editors, but the editor-in-chief, Sally Scholz, stood by the article. I will amend.

  1. Andrew Mcguiness says

    A well-written, to-the-point article.

  2. Dave Hatfield says

    A very well-written article. You made your points quite well and spelled out what I’ve been thinking much better than I ever could have expressed it myself. Remarkable. Thank you!

  3. ga gamba says

    This is a fascinating read. Top-calibre, highly informative journalism here. Hope to read more pieces by Ms. Finne. Thanks.

  4. Hutch says

    A brilliant article by someone who clearly has practiced law and understands the importance of the these fundamental principles.

    I worry however that the lack of true argument is more a result of our species uncovering objective scientific truths (about the universe / ourselves) that are fundamentally at odds with the Saturday morning cartoon morals which have been entrenched for hundreds of years.

    The further we advance, the further striated our society becomes in the ability to understand the advancements and adjust their own internal framework of morality.

    There are people who lack the necessary skills (and means) to comprehend your article, yet those same people have their own view of what is considered right and wrong. They will side with, and echo the sentiments of, any party who appeals to their own vested interests and attempt to hinder those don’t.

    Therefore it’s not so much that we have strayed away from values you so eloquently recount, but rather those same values, when correctly adhered to, have unearthed the fundamental inequalities between people (their abilities as measured by a defined metric / environment).

    We’re very much in the denial phase and its manifesting in an odd social justice culture of victim stacking and tearing down of identity. A frustrated attempt to bend the physical reality of the universe in line with an antiquated sense of moral equality.

    You cannot expect civil discourse from people who cannot entertain the possibility of a position if it does not accord with their own internal morality or vested interests.

    audi alteram partem means nothing to someone who does not want to change their mind. They will actively avoid it so that their position remains crystallized. Then you have people who don’t possess the tools (cognitive, experience, rationality) to even discern between arguments to ascertain objective truth.

    Human subjectivity is now invoked like patriotism, a fall-back position to protect the same vested interests of a group of individuals against external pressures. Certain objective facts have to be ignored by groups of people to advance their vested interests (even survive in some cases).

    If the empirical facts point to you being in a losing fight, and the outcome of that fight could mean the end of your existence / loss of power, do you really expect yourself to fight fair? Does the objective truth of your demise or demotion in society bring you any consolation?

    You’re calling on society to effectively “fight” fair and seek objective truth in all respects. In reality it’s collectives of individuals, of varying competencies, clamoring in arbitrary allegiances to have their vested interests placed at the top of the pile.

    We may be agreeable to seek and accept “objective truth” through the application these logical maxims up to a point. However we stop seeking when our own vested interests (some on an evolutionary level) kick in and take precedence.

    • Hutch, this is an interesting analysis thanks. I hadn’t thought about it quite like that, but have been pondering that there must be some degree to which greater expression of subjective experience exposes injustice which can then be remedied better by using the tools of objectivity rather than continuing to focus on the subjective.

      It goes to the whole mutual-factorial analysis thing on issues such as the gender pay gap. Careful analysis will reveal some elements that do not represent any structural unfairness, but it will also reveal those areas where there is an inbuilt bias, consider for example the increased numbers of women in orchestras when auditions are blind. We do need the subjective experiences to alert us to what is going on, but it is the objective tools which enable us to see the wood for the trees and therefore to actually make changes.

      • Frank says

        I would like to add to Hutch’s commentary the evidence we have from the fields of evolutionary psychology, biological anthropology, behavioral endocrinology, and brain science. These are the biosocial sciences most relevant to understanding society and are disciplines that study the naturalistic causes of social behavior. Evolutionary theory is part of the tool kit of behavioral biology, useful for generating hypotheses about ultimate causes.

        That said, Frank Salter presents a powerful case for the adaptiveness of ethnocentrism. Different human ethnic groups and races have been separated for thousands of years, and during this period they have evolved some genetic distinctiveness. This genetic distinctiveness constitutes a storehouse of genetic interest.

        A quick look at the historical record shows that conflict between different groups has been common throughout human history. Tribalism seems to be the default mode of human political organization. It can be highly effective: The world’s largest land empire, that of the Mongols, was a tribal organization. But tribalism is hard to abandon, again suggesting that an evolutionary change may be required.

        Edward O. Wilson was pilloried for suggesting in his 1975 book Sociobiology that many human social behaviors might have an evolutionary basis; his Marxist critics wanted to keep the mind a blank slate, moldable by governments into Socialist Man. Research since then has established that Wilson was correct. From their earliest years, children wish to be part of a group, to obey its rules and to punish violators. People have an instinctive morality, a readiness to make any sacrifice in defense of their family or group. These and several other social behaviors seem to be inherent and therefore genetically based, even though the relevant genes have yet to be identified. The implication when there is a choice to be made whether in marriage, friendship, or other type of alliance, all things being equal, we are more likely to choose similar others as a way of enhancing the benefits of relationships.

        Few questions more clearly preoccupy our era than that of how to facilitate civil, free, and democratic interaction among the citizens of multicultural societies such as the current USA and the EU. It was Harvard political scientist Samuel Huntington who forecast a soon coming age of “international turmoil”, in which the grounds for conflict will no longer be ideological or economic, as during the Cold War, but “civilizational.” “The clash of civilizations, Huntington warned, will dominate global politics,” and make the achievement of an international consensus on democracy and peaceful coexistence “highly unlikely”.

        In terms of achieving agreement in such a society, you’re going to need to make a paradigm shift to really understand what’s going on in the US. We have a major schism in the US based on a different set of values and beliefs than we had 50+ years ago. Our clash is over “whose country” America is, over what way of life will prevail and over who is to defer to whom about what.

        Some of the public and some in the print media still continue to pound on Congress for their unwillingness to compromise. But compromise is only possible among competing interests when they can agree on an overarching goal. That has been impossible in the US. Citizens are deeply divided about who should get the benefits of government and under what conditions. Increasingly, public policy analysts see no fix to that

        Because of the basic fundamental differences between the Red States and the Blue States, it is virtually impossible to get them to identify that overarching goal that embraces both camps. Even the usual overarching goal of doing it “for the good of the country” rings hollow because they ask, which country, Red or Blue?

        This is not my theory. This comes from the field of group dynamics and is always true. If those in power desire compromise they must find partners who are seeking the same destination as they are. Absent the commonality of purpose, compromise/agreement is virtuously impossible. Compromise in American politics requires unity of purpose, and as such is a virtue that is distinctly American.

        So has Jonathan Haidt got it right? That is, it needs to be made clear what business universities are in (pursuit of truth or social justice) and give people the free market choice to choose to go to which university they prefer? Just remember, this is going on in a country that continues to lose the ability to agree on solutions because of the huge moral and value differences in it’s populace.

        • Frank, I see why and how you are building on Hutch’s comment here. I need to think and read about it more. It is beginning to look to me that evolutionary biology and related fields really are the key to understanding and addressing social and political strife. Philosophers and other abstract thinkers need to be as informed as possible about those fields in order to be adding to the debate in practical ways, which does however lead right back to an insistence on the empirical and the objective. When they are rejected it is not clear to me how discussion proceeds at all.

    • ERH says

      Good comment. I’ve been feeling like western society has been shaken up…like a fault line or a crevasse opened up and now everything is up for grabs. Resources are up for grabs, political representation – up for grabs, identity – up for grabs, public finance, demographics, language…all up for grabs. Culture, fame, Right vs wrong, good and bad, up vs down, public opinion…all up for grabs. Anything goes for the opportunistic groups clamoring at these vital resources. Truth just needs to seem true. Social media has been the steam engine for this phenomena. Vultures in the height of a feeding frenzy have no time for the tenets laid out in the article.

  5. Commendable analysis – fair and honest. It is heartening to see well reasoned, articulate advocacy for fairness and intellectual honesty, especially in the age of “hashtag justice” and on-line mob rule. Thank you!

  6. Jay says

    The idea that the case against same-sex marriage was not adequately presented before the Supreme Court of the United States is strained at best. Obergefell arrived at SCOTUS after many years of litigation re same-sex marriage in state and federal courts, and two years after SCOTUS itself had heard cases involving California’s Proposition 8 and the Defense of Marriage Act. It is ludicrous to think that the advocates for Proposition 8 (Charles Black in federal court and Kenneth Starr in state court) were not leading conservative attorneys, or the attorneys that represented the House of Representatives defending the Defense of Marriage Act were not capable. Moreover, a record number of amici briefs were filed on both sides of the Obergefell case. It is folly to think that the Justices of the Supreme Court (on either side of the issue) were going to be persuaded by some novel interpretation of the law if only elite legal firms would allow their litigants free rein.

    I suppose some die-hard segregationists believe that if only a silver-tongued lawyer had appeared, Jim Crow laws would also have survived constitutional scrutiny.

    • defmn says

      I don’t believe the author’s point was that the decision would have been different had the law firms involved been different. Just that such a high profile case before the SC would normally attract those firms she saw as ‘elite’ and the fact that they declined for the reason she quotes.

      “Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

      That is a totally different argument than your point, imo.

      • Jay says

        The author is simply misinformed. Many “elite” law firms participated at various levels in the judicial consideration of same-sex marriage. By the time Obergefell reached SCOTUS, the court had heard from many highly connected and “elite” attorneys on the issue of same-sex marriage. It was clear to anyone who followed the various judicial rulings after Windsor that there was a 5-4 majority in favor of same-sex marriage. Only the outlier ruling from the Sixth Circuit in Obergefell compelled a definitive ruling on the issue.

        Does the author think that the Justices refused to read the literally hundreds of amici briefs submitted that argued virtually every possible position on the issue?

        This author plays fast and loose the facts.

        Her recommendation of a “cab-rank-rule” may or may not be a good idea. But I rather doubt that justice in the UK is any more “objective” than justice in the United States. In any case, she would have to prove it by a better example than the same-sex marriage decision, which was no doubt the most fully discussed, debated, and litigated decision in recent history.

        • Bill says

          That isn’t the author’s point. The point was that many “elite” law firms did not jump at the chance to represent before SCOTUS specifically because of the labeling and negative consequences they would face. While many may have participated in the cases leading up to SCOTUS, making an argument before SCOTUS is viewed as a big deal. Whether this was the case or not, I don’t know, but it is a reasonable reading of the circumstances considering the hashtag/boycott justice we see where the SJWs could easily pressure big named clients from dropping a firm who represented the anti-PC-side in such a case. A far cry different than the model in the UK that the author describes.

          This is an area of personal interest. I am a conservative voter on most topics but the justice system is heavily biased for this reason. On TV you may see movies where the moraled attorney stands up for the repugnant client because everyone deserves the best possible representation — but in reality this doesn’t happen because of money. In many cases, the repugnant client has no money but that is only part of the equation. Attorneys take those cases pro-bono when the name recognition can lead to future earnings (Casey Anthony’s atty for example). That latter part, where the penniless client receives great representation is not going to happen in the case of a “social justice warrior says they are Hitler” case. The shooter in FL, clearly has mental health issues, lots of history there. A ripe case for a great attorney to get him into a mental institution but it is far more likely, due to the political atmosphere around gun-control, that he won’t and will instead receive the death penalty because that’s the justice that the mob demands. What would Atticus Finch say?

          • Jay says

            Again, the same-sex marriage case did not want for elite lawyers on both sides of the issue. Period. Even the lawyer representing Ohio in the Obergefell case, which the author denigrates, was an elite lawyer in any reasonable definition of the term, and he managed to win the only anti-same-sex marriage decision at the circuit level, so he must have been pretty good.(Or the judicial panel that ruled for him was pretty bad.)

            If the author is really interested in applying the cab-rank-rule model in the United States, by far the better example would be the disaster of our criminal justice system where the public defenders are usually overworked and underpaid. In the UK, it is the criminal defendants who benefit by the fact the Crown Prosecutor’s office chooses both the prosecutor and the defense lawyer when the defendant is indigent.

            And, of course, in many civil cases wealthy plaintiffs simply manipulate the system in order to force their adversaries into bankruptcy.

            But none of this applicable to the same-sex marriage case, where enormous amounts of money were raised and spent on both sides of the issue–and a lot of it by taxpayers in states that fought marriage equality rulings even after SCOTUS had ruled.

          • Bill says

            Since you’re getting hung up on the specific trial versus the point, try this one: https://www.sfgate.com/politics/article/Law-firm-boycott-call-raises-ethical-issues-2622558.php

            “When corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists and representing reputable firms,” Stimson said. He also questioned where the law firms were getting money for the cases.

            To imply that law firms are not making representation decisions based upon the PR perspective is plugging your ears and going “la la la la la.” It is the same SJW shakedown we saw just recently with companies which provided any sort of discount to the NRA or the Government’s influencing of major banks to stop serving firearms manufacturing businesses as clients (or marijuana farms in CA and CO if you want the pro-Left variation).

    • Thank you very much Jay, defmn and Bill for your comments on this part of my article.

      Jay, I take your point that the issue has been considered in depth by the courts. I certainly wasn’t seeking to denigrate any of the lawyers who argued the case against same-sex marriage, or to suggest that the case would have turned out differently with different lawyers. Rather my point was in relation to those lawyers who, on principle, chose not to argue it.

      This is from the NY Times article which my article linked to:
      “In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.”

      It goes on to quote the law professor who said that those new lawyers would want to work in a “community of respect and diversity.”

      This goes to my basic thesis that it cannot be disrespectful simply to make an argument, whether it be in a courtroom or in an academic journal. Otherwise we are all left struggling to figure out what is allowed and what is not allowed – and how are we supposed to do that unless we can speak freely without being regarded as disrespectful.

      There is enough breadth and depth in the U.S. legal profession that as you show, when person A doesn’t take the case, person B and person C do. The problem is that if it is disrespectful for person A to take the case, then isn’t it disrespectful for person B or person C to take it too? Person A taking a principled stance out of respect, leaves persons B and C vulnerable to charges of being disrespectful. It is this attitude I was seeking to show as problematic rather than to make an argument based on the specific outcomes in the same-sex marriage litigation.

      • Jay says

        Your point would make much more sense were it focused on criminal cases or on the public defender system in our country, which is broken. The cab-rank-rule system might make a real difference there, though I suspect that the legal fraternity in this country would not be supportive.

        Your examples are of people in elite law firms who did not want to argue against marriage equality. But surely there were probably far more elite firms that until 2008 would have rejected out of hand a case on behalf of securing the right to marry for lgbt couples. (And indeed, did.)

        The real breakthrough came when renowned litigators Theodore Olson and David Boies teamed up to mount a federal challenge to California’s Proposition 8. This was noteworthy because Olson was an acclaimed conservative Republican Solicitor General and Boies a famous liberal attorney. The two had argued the opposite sides in Bush v. Gore and, symbolically, their quest for a constitutional right to same-sex marriage represented support from both conservative and liberal legal practitioners and scholars.(Their adversary was also a famous elite attorney who had served in the Reagan and G.W.H. Bush administrations.)

        But until that breakthrough, the attorneys who represented lgbt plaintiffs were almost entirely from the legal groups specializing in cases involving sexual orientation discrimination. Even when attorneys associated with elite firms helped gay legal groups, as in the case of Paul Smith, who argued Lawrence v. Texas at the Supreme Court, they made certain that they were doing so under the umbrella of the public service firm rather than their own firms.

        Why didn’t you and other conservatives then bemoan the fact that almost no major elite firm would accept litigation intended to further gay rights?

        It seems to me that what you are complaining about is the market system that governs elite legal firms, who decide the kind of representation they want to be known for (or not known for) based primarily on their sense of how they will benefit in the long run.

        In any case, there are and have long been a number of public interest law firms that specialize in controversial issues and are not overly concerned about being “disrespected” for the positions they argue, most preeminently, the ACLU, but also such special interest firms as Lambda Legal, GLAD, the NAACP Legal and Educational Fund, the Southern Poverty Law Center, and others on the “left” and many more groups such as the Liberty Counsel and the Alliance Defending Freedom, etc. on the right.

      • markbul says

        Ms Finne

        Jay accuses you of something you didn’t say, and then excoriates you for it. Instead of joining into his game and tying yourself in his knots, you might just want to correct him and leave it at that.

        • Thank you Markbul for your support. I do reiterate that I was not trying to make any point about the competence of the lawyers who argued the case against in the same-sex marriage litigation, rather to comment on the implications of other lawyers choosing not to be associated with those arguments in the name of respect and diversity.

          It is true that audi alteram partem is not perfectly reflected in any legal system, it is distorted in many ways, with money being perhaps the most significant factor. Nevertheless even with, say, a poorly funded public defender service there is a nod to the importance of the underlying principle.

          What is new – and what my article is trying to get at – is what looks to me like a rejection of the principle itself out of respect for the ‘lived experience.’ If that is so then to my mind it is a significant and detrimental change to our epistemological ecosystem.

  7. defmn says

    //From the squabbling preschoolers to the person accused of inappropriate conduct in the workplace, we need to uphold the principles of audi alteram partem, proportionality, the presumption of innocence, and the rule of law.//

    Thank you for an excellent read.

    I quote the passage above because while agreeing with the sentiment I think that you have also shone a light on one of the principle causes of the “subjective narrative’s” ascendancy which is, of course, the loss of trust in the rule of law.

    The rule of law is at its most basic level the modern liberal democracy’s answer to Plato’s philosopher king or Hobbe’s Leviathan monarch. It’s role was to dispense justice but I think you will find very few who any longer believe that the courts perform that duty with any degree of reliability.

    The reasons for that are many, of course, but the most obvious reason is related to your anecdote regarding the unwillingness of elite law firms to contest the legislation enabling marriage for same sex partners. In order for there to be justice in the court room there must be a certain level of equality amongst the contestants and in the days of $2,000 an hour lawyers those days are long gone. It is no longer the rule of law so much as it is the rule of money – or inequality – which has transformed itself into the rule of equity.

    //It has ancient roots in the concept of lex talionis, or the law of retaliation and can be found in the Code of Hammurabi. But perhaps its most famous formulation appears in the Hebrew Bible as “an eye for an eye.” Although this idea sounds barbaric to modern ears, the underlying point was that only an eye, and no more than an eye, must be forfeited for an eye taken. An upper limit is set which prevents society collapsing back into a limitless cycle of vengeance and vendetta.//

    I wanted to thank you for this. I am constantly amazed how virtually nobody any longer sees the ‘eye for an eye’ as an imprecation for proportionality. The fact that it is regarded almost exclusively as proof of excessive harshness tells a story about our legal system as well and why it is no longer worthy of its claim a system of justice.

  8. Nice.

    Aphorisms – pithy observations which contain general truths – are also containers of omissions and blunt generalisations.
    The underlying point of the aphorism “an eye for an eye” might better be interpreted as up to an eye and no more than an eye, rather than only an eye and no more than an eye. This now extends “consistency between what person A gets for stealing a loaf of bread and what person B gets for stealing a loaf of bread” to include “all other things being equal”. If person A is deemed to have stolen the loaf because their circumstance was one of deep misfortune, then we shouldn’t give that person the same punishment. And ultimately, if we follow the reasoning that takes us from a deterministic universe to the non-existence of free will we would only “punish” someone in order to deter, and not for vengeance. However, this ignores a further truth – that no matter how well we can make that point, there will always be a large constituent of society who cannot fathom or accept such a conclusion. In which case we need to balance the sense of injustice felt by those people by inclusion of some sort of vengeance component. (But we’ll never get to the point where vengeance is included for such rational reason, rather than because vengeance is justified by emotion, because another constituency, that of those making the rules, will be an overlapping subset of those people who cannot fathom or accept the free-will conclusion, or will be pandering to that constituency).

    To play devil’s advocate against part of this article, we could apply this kind of sum-total-well-being perspective to some kind of mob rule. In an ideal society in which all individual actions of abuse are adjudicated objectively, based upon available evidence, there will still be a lot of such abuses not being punished (for want of a better word – “punishment” including both deterrence and vengeance) because of lack of evidence or because of her word against his unresolvability. And we can’t expect to live in such a world where every single social abuse is adjudicated by objective third parties. Now consider the example the extreme parts of the #MeToo movement. We can imagine two measures of the levels of sum-total sexual conduct injustice (and attendant deterioration of sum-total well-beings): one being the measure of the sexual abuse and harassment committed that goes unpunished, and one being the measure of injustice due to false accusations and disproportionate punishment of real abuses (such as having a career ruined for a minor indiscretion). We can dial up the former and the latter will diminish. We can dial up the latter and the former will diminish. There will be a sum-total well-being maximum at a particular setting. We don’t know where that is, but in the imperfect world described above, some form of mob rule might actually push the dials closer to that maximum. That might, on some level, be the intuition of the extremists in the #MeToo movement, whether or not they clearly perceive it as so, or would be able to articulate it. My gut feeling is that a new norm will come out of the movement which is better than the old norm, and that the extremist will have had their day. You’ve just got to wish your lucky stars you’re not either a man on the wrong end of the accused-and-be-damned scale, or a woman on the wrong end of the abused-and-be-damned scale. Men are currently more likely to be unjustly landing on the go-to-gaol square in the current milieu than previously, and woman were more likely to be landing on the unjust go-to-hell square prior to #MeToo. Which brings this neatly back to identity politics and undoing of historical wrongs. The sum-total over all history of the pain of abused women is not mitigated by having a sustained period of the injustice of men being damned by accusation. (Unless we start again using a similar, imperfect reality bases dialling-up of the new injustices in order to dial-down the sum-total sense of historical injustice felt by those without the capacity to reason that new injustice doesn’t cancel old injustice)

    • JA you make an interesting point. For me the problem with doing a sum-total analysis is it loses sight of the individual though. I think the individual is the supreme moral agent, and we should treat them as such, particularly in the realms of the criminal law. I don’t think I’m much of a utilitarian. There’s that saying along the lines that it is better that ten guilty men go free than one innocent one go to prison.

      All that said, I do hope that what comes out of #MeToo is a cultural change. The Harvey Weinsteins of the world are now on notice that the stakes for them are very high. Where it leaves sexual ethics in general though, particularly in the workplace, is not clear – a lot to be worked out.

  9. “the role high school students are playing as commentators in the gun control debate, comes at the expense of an emphasis on expertise”. Yes, but part of the problem is that the experts’ voices are drowned out by the hordes. You have nicely identified two dimensions in another part of your article. There’s a second dimension here. That the high school students’ role also comes with the benefit of fresh eyes calling the gun nuts’ sanctity of the 2nd amendment dogmatic and the NRA emperor’s clothes non-existent.

    • Bill says

      Your “fresh eyes calling …” sounds very much like the justification for vigilantism as those fresh eyes are not impartial but driven by emotion in temporal time frame of having recently been victims. Following your logic, then the complete disbanding of the IRS is warranted because the fresh eyes of those conservative groups targeted by Lerner et al calling the sanctity of the IRS dogmatic. Or perhaps the benefit of fresh eyes of the Down’s witnesses before Congress calling the abortion nuts’ sanctity of Rowe v Wade being dogmatic. Or the fresh eyes of those who’ve just had SCOTUS rule in their favor questioning the sanctity of the 9th Circuit dogmatic in light of their overturn record.

      A victim is not fresh eyes of and by themselves, they are only part of the picture. Those child victims probably haven’t heard of The Battle of Athens which provides the exemplar case of why the framers codified the 2nd Amendment. It had nothing to do with protecting oneself from villains.

      • “Sounds very much like justification for vigilantism”? Vigilantism is taking the law into your own hands. The high school students are trying to persuade. Those are massively different things. The point I was making, though, is that there is more than one dimension. The author is right that high school students are not experts. But they might also be performing a vital role of causing folk to move from their dogmatic positions. These are two non-mutually exclusive things. What you seem to have done is list of bunch of other unrelated other things (although perhaps related by political orientation) where argument and persuasion, neither of which are vigilantism, are deployed. I’m not sure how you get from a bunch of high school students making pleas for change to some folk supposedly getting SCOTUS to rule in their favour. Perhaps you are saying that emotive pleas should not have power just based on the intensity of the emotion. I agree. That is another dimension that should be taken into account, and is not mutually exclusive to either the problem of the experts not being heard, or the value of “fresh eyes” to a seemingly intractable problem. Yes, the students may well be naive and less capable of reasoning (it’s why we don’t give young folk the vote, although these particular high school students that I’ve heard seem extremely capable for their age and would be wiser than many older folk – but we have to have that somewhat arbitrary threshold put on the continuum of age). But the irony of you bringing up the original reason for the 2nd amendment is that the original reason is preposterous in a modern world, and it could be argued that “protecting oneself from villains” might arguably be reason for having a gun. You could then be your own law-enforcer. There’s a word for that ….

    • stevengregg says

      The high schoolers are being used as puppets by a conspiracy of liberals to proffer the same old, same old facile, foolish, and uninformed views of the hysterical Left. For example, the unhinged attempt to pass the blame for school shootings to the NRA makes as much sense as blaming AAA for school bus accidents. The bottom line, which nobody wants to accept, is that there is no defense against armed crazy people.

      • Jake Barnes says

        I understand that the 2nd Amendment is a cultural thing for Americans, but that doesn’t change the fact that there is overwhelming evidence that less guns=less gun violence. These are empirical facts, not an opinion. So, the calls for stronger regulations on guns isn’t “liberal hysteria”, it’s actually a well-reasoned policy position that is supported by tons of evidence. Don’t get me wrong, there’s no shortage of liberal hysteria to lampoon, this simply isn’t one of those things. As a non-American, I totally respect your cultural right to have tons of guns, but that doesn’t change the fact that support for the more guns position isn’t too far off from arguing for flat Earth theory. That is, you can make a valid argument for it, but you can’t make a sound argument for it.

        • Bill says

          less guns != less violence. Using less guns = less gun violence is parallel to just saying ban all cars, that way you end all automobile related death — of course, as everyone moves to trains, for example, the number of train related deaths goes up proportionally. That’s ignoring that “gun violence” is a fuzzy term meant to invoke visions of school shootings but includes self-inflicted wounds. It’s parallel is “alcohol related car accident” including accidents where an Uber or Taxi gets in an accident while carrying home someone from a bar who did not drink and drive.

          The liberal hysteria is that the stronger regulations almost to a one could have been in place and still not prevented anything because the pre-crime division from that Tom Cruise movie does not exist. After all, school ground are already gun-free zones so what other regulations are needed? Raise the firearms ownership age to 21? Most shooters are > 21 anyway. Oh, these are military arms, the founding father’s never meant…. First, they aren’t military arms except cosmetically. Second, the founding father’s actually did mean military arms, refer to the history books about the war of 1812 and compare the armament of privateers against those of the US Navy. Privateers in 1812 had arms that you or I would be unable to own today.

          Want stronger background checks at age 18? Fine…but what constitutes a stronger background check? We already search criminal records, do you want mental health records? You may recall one of the reasons why that ISN’T there is because of the (rightful) belief that it would dissuade people from seeking mental health treatment if those confidential records could later be used against you later on. I don’t agree with Trump’s “take the guns first, then due process” position but the idea of having some sort of TRO-style option is something worth exploring — but the devil is in the details as Trump’s statement points out. The issue is you hear “we need stronger gun control regulation!” but never actually hear any ideas that work. When an idea like “ban ” is presented and then countered with debate it’s “OMG! You and the NRA want to murder school children!” Would the Left be any less defensive than the Right if it were “ban ” or “restrict voting based upon ” ?

          I saw a stat somewhere about how many people are on some sort of “psych” related pharmaceutical and it was staggering. To the mental health record point — should we remove constitutional rights based upon those? So every child/adult diagnosed with ADHD? What about all of the depression cases? Can we revoke voting right or free speech rights too? We know that free speech causes harm, that’s Antifa’s argument. Voting clearly causes harm too …i mean, look who we have as President! (/sarcasm off)

          • The debate about guns very much interests me. I come from a country in which most police officers don’t carry guns, but am married to an American in the military, have spent the last decade around a lot of military people, and have therefore had to get used to the normality and ubiquity of gun ownership. It has easily been the biggest cultural adjustment I’ve had to make, and I will admit that the adjustment is nowhere near complete.

            What is interesting to me is the roots the 2nd Amendment has in the English common law right to bear arms and in the English Bill of Rights of 1689. I think there’s some interesting analysis to be done on where and why the the political values in the two countries underlying the right to bear arms diverged. It strikes me that a significant difference is the size of the countries and the wilderness of America compared to Britain. The latter had been settled and stable for so many centuries before America came about.

  10. Sarah Allsop says

    Really loved this article. I will heartily read anything Ms Finne writes from now on. It comes at a great time for me personally, as I try to discuss these issues with my college freshman daughter who is starting to buy into the SJW narrative without considering the other side of the argument or the proportionality of some of today’s actions in response to historic injustices.

    • Sarah, thank you so much for that vote of confidence. I really appreciate it.

      I would recommend your daughter take an introduction to philosophy class. I would hope that in so doing she would be introduced to ideas such as ‘What is truth?’ ‘How do I know what I know?’ There is an amazing intro to philosophy textbook which I have used to teach freshmen. It is by James L. Christian and it is called Philosophy: an introduction to the art of wondering. It begins with the riddle of human existence – who are we? why are we here? .. and slowly builds from there. It’s a great read and very accessible.

  11. Santoculto says

    Post modernists or PSEUDO-subjectivists confuse niilism with purification of perception.

  12. Santoculto says

    Anyone here think super-suspicious after this … event, this kids appearing in tv and ”arguing” in favor of gun controll**

  13. ccscientist says

    The problem with subjectivism is that 1) some people are crazy, 2) some people have ulterior motives, 3) subjective feelings change, 4) it becomes a form of power-grab (no-platforming prevents other students from having their rights).
    In addition to the desire to give voice to the downtrodden, the rejection of religion has led to the rejection of the concept that there is any authority at all. So all becomes about me me me.

  14. David says

    To Kill a Mockingbird was published in 1960 not 1969.

  15. p m says

    Excellent piece. I will say the subjective narrative, at least one aspect of it, has long been a handy tool for print journalists to promote a favored point-of-view. Opposed to a new highway through a neighborhood? Open your article with the story of a poor single mom with kids who will suffer displacement. Want to end stop-and-frisk? Open with an account of an innocent A-student badly manhandled by police. Regardless of the merits of a position, and as much as we value the benefit of reason in decision-making – flawed beings that we are – our hot button remains emotion.

  16. ccscientist says

    There are some further issues with subjectivism:
    Those who feel strongly that it is racism keeping them down may be at least partially mistaken: maybe they need to move out of Detroit, maybe the welfare system that incentivizes teen pregnancies is to blame, maybe the dem politicians are to blame, and maybe the person themselves needs to take some responsibility and work 2 jobs like many whites have to (like myself).
    They can be mistaken and deface a statue that is not a confederate general. They can be mistaken about lots of things, expecially when they are fed their views by advocacy groups.
    Do we insist that we always “believe the victim” in cases of insurance fraud (of which there are billions of dollars every year)? No because people know that some jerks claim fake losses.
    Feelings can also be mistaken when people blow tiny things into end-of-the-world things. Such hysterical reactions to the speech of visiting lecturers is common.
    Finally, there is a very bad tendency to blame entire groups (whites, jews, men) for things that only a few people do or that are a legacy and that no one does anymore. My ancestors came to US after the civil war but somehow I am responsible for slavery? I don’t think so.

  17. I wonder how long it will take for today’s ‘order’ to become the “old order” being accused of its own version of injustices. And how many lives will be destroyed in the interim?

  18. Well argued piece—a follow up article could be an exploration of natural law as a means of achieving objectivity in a pluralistic society. . . . which I have no where near your credentials to write. (ha!)

    Thanks so much for sharing–
    From a fellow mother of many (five)–who enjoys a good intellectual discussion.

    • Anna, thank you for reading and for your response. I am so aware that finding time for the intellectual stuff amidst life with young children is not always the easiest, but very much worth it. Can you elaborate a little on your idea of natural law as a means of achieving objectivity in a pluralistic society? Why not put your thoughts up on Medium? I’d love to engage. Figuring out how we are going to all find some consensus (and agreement about what even counts as truth or fact) in a pluralistic society is easily one of the defining issues of our time.

  19. Peter Dawson says

    An excellent, well argued and well written piece. There was just one bit which piqued my critical antennae:

    “In the modern era, proportionality was first developed in depth by the German courts. The German principle of proportionality, Verhaeltnismaessigkeit, went on to heavily influence European law, and in particular the European Convention on Human Rights, where it is used to balance the rights of the individual with the interests of the community. ”

    While the fundamental priciples of the ECHR might have been paralleled the Verhaeltnismaessigkeit, I suspect it may not have been the guiding principle behind Churchill’s call as set out below:

    “In a speech at the University of Zurich on 19 September 1946, Sir Winston Churchill called for a “kind of United States of Europe” and for the creation of a Council of Europe.[9][10] He had spoken of a Council of Europe as early as 1943 in a radio broadcast.[11]” Wikipedia

    Which then led to this:

    “The Convention was drafted by the Council of Europe after the Second World War in response to a call issued by Europeans from all walks of life who had gathered at the Hague Congress. Over 100 parliamentarians from the twelve member states of the Council of Europe gathered in Strasbourg in the summer of 1949 for the first ever meeting of the Council’s Consultative Assembly to draft a “charter of human rights” and to establish a court to enforce it. British MP and lawyer Sir David Maxwell-Fyfe, the Chair of the Assembly’s Committee on Legal and Administrative Questions, was one of its leading members and guided the drafting of the Convention”

    My complete enjoyment and appreciation of the article didn’t suffer as a result.

  20. What an excellent article. The author really gets to the heart of why our society is being ripped apart. We have many freedoms in this country, not least of which is the freedom to speak your mind. The freedom for others to offer rebuttal however also comes with that and is something many are unwilling to accept.

    I take one slight issue to the author’s statement that this drift away from objective truth is “rather, it is driven, at least in part, by a concerted and ostensibly well-intentioned effort to privilege voices hitherto excluded, oppressed, or victimized. ”

    Maybe at some point there were good intentions involved but we are far past that point. The fairly land narrative of subjective truth has been coopted and now being aggressively pushed by the far left to divide and grow their ranks. There is nothing altruistic about it.

  21. Guest says

    Not impressed. This article fails to address the elephant in the room. I suspect the author sees the elephant, at least at a subconscious level, but won’t address it publicly because, in an ironic twist given the topic of the article, to do so would subject the author to ostracism and blacklisting.

    “We are living in socially and politically bewildering times.” No, we aren’t. We are living though the predictable (and predicted) societal sea change wrought by mass immigration of peoples of non-Western backgrounds to the West. The author refers repeatedly to our society as “we” and “us” without ever stopping to consider that the “we” and “us” of 2018 are not the “we” and “us” of yesteryear.

    The values that defined the objective frame of reference described in the article were products of the Enlightenment, which was a uniquely European, and more particularly an English and Scottish, phenomenon. “Our” modern notions of science, government, law, and individual rights flow from these Enlightenment values. But these values were not, and are not, universal. There was no Enlightenment in Asia, Africa or South America, and their cultures developed very different notions on these topics.

    It’s pure folly to believe that the Enlightenment era values that defined the West will survive our current round of mass immigration into the West. Culture is real. Culture matters. And culture is simply a product of a collective peoples’ knowledge, history, experience, and belief system. Change the composition of the collective people, what we call demographics, and cultural change follows as inevitably as night follows day.

    The author appears to consider herself a classic liberal. The bewilderment the author perceives is simply an expression of her cognitive dissonance resulting from the fact that the objective reality she observes does not match the multicultural utopia she expects to exist. This is the fallacy of the false premise.

    In America, California is on the leading (bleeding?) edge of cultural change driven by changing demographics. If the author is in Norfolk then her husband is likely Navy and a deployment in San Diego will be in the cards for her. I hope she will report back after deployment in California.

  22. Spirit of Spring says

    The West is what it is because of Christianity. Thanks to Christianity, we enjoy the separation of state and church. It was Christians who abolished slavery and persuaded others to do the same. It was Christians who pushed individualism. It was Christians who said men and women were equal before God and law.

    All of the virtues flaunted by today’s social justice warriors are Christian. For instance, inclusion and diversity come from the commandment “Love thy neighbor as you love thyself.” It’s nothing new!. So why are these new virtues not working out so well? Why is “love thy neighbor” not resulting in a utopia? Because the second half of that commandment has been forgotten. In order to love others, you must first love yourself. Social justice warriors, however, teach us that we should hate ourselves because of colonialism, patriarchy, etc. An underlying hatred can never produce love.

    Christianity was our system of values, the structural code of our civilization. We have not invented anything better since then. We are abandoning it at our peril. And since we are eagerly ceding the spiritual turf, expect those other religions to move in and rewind the clock. A man is a spirit first.

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