Culture Wars, Law, Philosophy

Arguing in America

Jacob Siegel’s recent essay for Tablet entitled “The New Truth” manages to capture something important about the current state of discourse in America. Essentially, the marketplace of ideas is beholden to a despotic elite, and is being used to proselytize a new moral order. This moral order is perpetually in flux and is subject to ongoing revisions from its adherents. The only constant is that current systems of morality have failed and are, in fact, perpetuating immorality.

The important question of how we got here has yet to receive a satisfactory answer. Yes, clear and early warning signs about the growth of this new culture on campuses were missed or dismissed. Yes, the hard sciences are becoming increasingly politicized and pressured to accept that “other ways of knowing” are at least as valuable as the scientific method. But none of the existing answers properly explains how the national discourse has surrendered to the ascendant dogma of what Seigel’s Tablet colleague Wesley Yang has called the successor ideology.

What has been missing from this discussion is an acknowledgement that Americans are not engaged in truth-seeking conversations about complicated issues. Instead, they are litigating them. Law students are taught that what is legal and what is moral are different questions. A society’s laws may be a rough approximation of what that society deems moral, but these two considerations often diverge in practice, whether in law or in everyday life. It is certainly immoral to cheat on your spouse, but it isn’t illegal. Exceeding the speed limit is illegal, but there is nothing necessarily immoral about it. During the Holocaust, families that took in and sheltered Jews were breaking the law, while the soldiers and citizens reporting and executing them were following it.

This distinction is frequently (and understandably) lost on the general public. We expect the laws we follow to align with our general moral compass. As a result, we are shocked when legal outcomes do not align with moral ones—the O.J. Simpson verdict may have been legally valid but it was also morally scandalous. Nevertheless, understanding the distinction between morality and legality can help us understand why lawyers act the way they do—they are trained to operate in a world where—aside from legal ethics and professional obligations—the only rules that apply are legal ones.

A lawyer is not hired to find the truth or the morality of a case, but to advocate on behalf of his client. To do that, he will use every argument and legal tool available. In fact, he has an ethical obligation to do so. The American Bar Association explicitly requires a lawyer to “zealously assert the client’s position under the adversarial system.” When a lawyer enters the courtroom, the objective is to win, not to determine truth or morality. Where truth and, in rarer cases, morality are determined, they are by-products of the adversarial system. Defence lawyers frequently advise their clients not to take the stand in criminal cases, even though doing so would surely improve the truth-finding ability of the court. But the objective is acquittal, and if a client’s testimony is likely to jeopardize that goal, he will be advised not to testify under oath.

This approach can lead a lawyer to take uncompromising positions that fly in the face of reasonableness and common sense. He might attack the credibility of a physician whose findings do not help his client, or he may attack a witness’s credibility to undermine the reliability of unhelpful testimony. If it is expedient, a lawyer may even defend two opposing propositions at once or disguise an extreme claim as a perfectly reasonable—and indeed the only moral—one. Most importantly, in the adversarial system, a lawyer rarely concedes an argument to the opposition. When filing a civil defence, it is common to simply assert that, “The defendant denies all statements made by the plaintiff except for those expressly admitted herein.” Why agree to uncontroversial timelines, correspondence, facts, and definitions if you can force your opponent to do that work and possibly make a mistake or omission in the process. This tactic can sometimes produce absurd results:

Nevertheless, the court system generally works (despite the occasional absurdity) because the process is overseen by a judge who understands the rules of the game and who decides what is material to the outcome of the case and what is smoke and mirrors. His job is to call balls and strikes in the courtroom, ruling which arguments are in and out of bounds. Lawyers like to joke that a ruling is probably correct if both sides are equally upset by it.

Truth-seeking discussions, on the other hand, do not operate in a litigious manner. We don’t want our morals, governmental policies, science, and understanding of society to be a matter of who is the better litigator. The liberal tradition is intended to allow truth to emerge from exploration and good-faith criticism that earnestly seeks an accurate representation of reality and not the promulgation of a particular position. Our survival and success as a species relied on uncovering the workings of the world so that we could navigate it with greater knowledge and confidence. We must take the universe as it is; we cannot will a preferred alternative into existence.

The current state of discourse, however, resembles a litigious battle where the only goal is victory. No quarter is given and no concession is made, since to do so would move the dialectic towards the kind of discussion in which ideas are presented, explored, and accepted or rejected based on their evidentiary support. The arguments taking place on online platforms and across the media and parts of academia are ruthless pitched battles in which facts only matter to a participant if they support his position. If a combatant has a personal flaw or an embarrassing tweet in their archive, expose it and humiliate them until they retreat. If they are not the correct race, gender, or class to speak on a topic, insist that their opinion be excluded from consideration. This is litigation 101: Discount or disqualify those who oppose you, regardless of the merits of the evidence or arguments they possess.

But outside the legal system, there is no authority to right the ship and call out foul play. There are no rules and no consequences for playing dirty. Lying, slandering, doxing, deplatforming are all justifiable tools in the Internet litigator’s toolbox. The only consequences are for the losers, whose careers and personal lives are too often thoughtlessly sacrificed in pursuit of victory. And the grim spectacle of reputations and livelihoods being torn to pieces online offers an effective deterrent to anyone else thinking of entering the fray. This is why many of those who might still defend liberalism prefer instead to remain silent.

This state of affairs is especially sad because understanding the complexities of issues like race, policing, drug reform, gender rights and relations, accessibility, and representation remains important. Polls indicate that the general public is more alive to the issue of race in America than ever before—I hope the opportunity this presents is not squandered by the sanctimony of those who now hold the reins of cultural power. Before joining the battle, Americans of all political persuasions should ask themselves: “Am I entering this conversation to get closer to truth, or am I only here to destroy the opposition?”

 

Geoff Costeloe is a practicing lawyer and entrepreneur in Vancouver, Canada. You can follow him on Twitter @gcosteloe.

Image: Fredric March and Spencer Tracy in Inherit the Wind (1960).

Comments

  1. Arguing is against the law in Canada. Stating that arguing is against the law is also against the law. Hockey fights, however, are still legal.

  2. I think the article provides a useful model for understanding why civil discourse is on the brink of breaking down. The current media ecosystem magnifies our congenital cognitive biases: confirmation bias and motivated reasoning. As others have noted, the human mind is more like a lawyer than a scientist. Objectivity does not come naturally to us: we have a powerful preference for information that reinforces our existing views and an aversion to claims that contradict them. This is especially true if the beliefs in question pertain to an important aspect of our identity.

    The internet allows us to instantly find dozens of sources that support our views. How often do we conduct a Google search in order to falsify a strongly-held belief? Very rarely. We instinctively rely on sources that reaffirm what we already think instead of challenging us. Even if we don’t seek them out, algorithms will deliver them to our eyeballs and inboxes. If humans were truly rational we’d take the opposite approach, preferring to be contradicted so we can replace our false beliefs with true ones. Instead, our inner lawyers start with conclusions and look for evidence that supports them. We readily distort, ignore, misinterpret and rationalize so we can maintain our favored views.

    Even if we can partially overcome our biases and attempt to argue in good faith with our ideological opponents, we very rarely agree on what constitutes a legitimate authority. As the author writes, the adversarial system only works in courtrooms (insofar as it does) because of the presence of impartial judges who determine what evidence is admissible. While “[t]he current state of discourse … resembles a litigious battle where the only goal is victory, …there is no authority to right the ship and call out foul play.” Fact-checkers were intended to play this role, but many regard them as hopelessly biased. That leaves us with claims and counter-claims and no agreed-upon way to adjudicate between them. Can democracy continue to function in this kind of epistemological impasse?

  3. Bingo.

    I and those I respect do this often, because we enjoy knowing the other side better than they know themselves. But this is uncommon on the side that insists that disagreement is immoral and that reading/engaging with the other side is immoral.

    And naturally, members of that side assume that it’s uncommon to us.

  4. Perhaps America’s greatest gift to the world is its form of democratic constitutional republic. Because so many issues are wicked problems (thanks @neoteny for that), they really don’t have achievable universal solutions on a theoretical, abstract, or logical basis. People have to tinker and try in their own different ways, at the state or more local level, to find out what works better for them (good-bye optimality) and be able to freely share their results, and learn from the other laboratories of democracy. At the same time it would probably be a wise idea to encourage people towards, rather than discouraging them from, solving their own problems rather than simply finding someone else to pin blame on or force to live under one’s own rather arbitrary rules.

    Yes, that probably means some sort of @Isaiah’s Jeffersonian reset, and it certainly means a loss of power for America’s current establishment and its scientific-technological elite that Eisenhower warned about 60 years ago. But given the current state of the Union, I don’t see those changes as anything but good.

  5. A Canadian once told me that he went to a fight and an ice hockey game broke out.

  6. One of the old preconceptions about the search for truth was the idea that if one was smart, one would necessarily be able to divine it more effectively. We now know that this is simply not the case. In experiments dealing with those who believed in man-made climate change and those who were more sceptical, researchers exposed both groups to carefully tailored pieces of evidence meant to support or discredit their preconceived notions. People invariably assimilate information that supports their existing position, whilst finding fault with information sources that do not.

    Crucially, more intelligent participants in the experiment were just as blind to truth as everyone else, the only difference was they were able to glean more arguments to support their position from source material, and find more creative ways (and more reasons) to discredit any material which challenged their existing worldview.

    I think there is an extent to which all of us become emotionally invested in our beliefs, because it can be deeply unsettling to confront flaws in our sensemaking intellectual apparatus. There is also a degree of behavioural economics involved, as investment in an idea can be quite costly in terms of time, and as such represents a sunk cost. Challenging an existing notion requires the admission that one might have wasted sometimes hundreds of hours in researching a topic.

    Teaching skills over knowledge has been particularly disastrous on this front, only compounded by the fact that universities no longer teach students to destruction-test their ideas. The theory was that knowledge was less useful in the modern age, because people could just Google it. This ignores the fact that we are far more likely to be able to interrogate the internet for valuable or pertinent information if we already have vast stores of knowledge committed to memory.

    Much of the breakthrough knowledge created in the past twenty years has been generated from pursuing an interdisciplinary approach to discovery. With more and more people having cause to doubt the information coming in from many channels, because of a singular lack of viewpoint diversity in many fields, it doesn’t bode well for the production of future knowledge that can truly improve the world in which we live. It may well be missteps and misinformation from here on in, with public policy generating disaster after disaster, on the basis of faulty knowledge generated without a healthy process of discomfirmation and refutation.

  7. The cognitive science is quite clear here. Human working memory is puny. A good example of this can be drawn from Maths reasoning. Whilst the top level of creative problem-solving can appear quite creative and skills-based, one needs vast stores of more basic mathematical knowledge committed to long term memory in order to be able to use any form of Maths reasoning. The tendency of well educated educators to overlook the building blocks of knowledge causes a form of expertise-induced blindness, which undervalues the need for students to learn all the boring stuff first.

    It’s what causes teachers to bemoan teaching to tests. Kids simply can’t learn the skills without the knowledge. But if you teach both- then the memory of the skill imparted can act as a signpost to accessing and retrieving said knowledge, creating a form of memory feedback systems which aids future learning. It’s why schools that set homework which consolidates learning (by checking to see that the kids have incorporated the knowledge into their brains), invariably send more kids to the more elite universities, even if their children come from poor, multi-ethnic, high crime communities.

    There is an extent to which education over the past fifty years has been based upon bad ideas, rather than good science. We now know how the brain works and how people learn- the information is simply not being passed on through the academia of the educational establishment. Foucault argued that because science had got it wrong again and again we should doubt objective knowledge- a core tenet of postmodern thinking- but what he neglected to mention is that each time science corrects the new theory is better than what came before.

    Knowledge is inherently better than skills- because you can have knowledge without skills, but you can’t have skills without knowledge. This is true for even the most practical skills. The difference is with practical skills that the knowledge is so deeply embedded in the process, that it is easier explain (in overview), show and get them to imitate, than it is to explain every process in detail. Think about sipping a coffee from a mug. You know its easy to pivot from the handle. You know to be careful with the first sip. You know it’s best to use a coaster, to avoid ruining tables.

    Our memory works to make relatively simple tasks an irrelevance, in terms of conscious devotion of working memory. Intellectual knowledge works the same way. The skills-only approach leaves many kids unable to perform fairly simple mental multiplications like 18 x 19. They often haven’t memorised the basic practices, in order to be able to focus on the higher level of complexity. Or they haven’t been taught the tricks…

    Think about doing 45 x 16. If might be quite hard, without paper, if you were simply using the add and subtract method to multiplication. But because you know that 16 is divisible by 2, it’s also 90 x 8. This also involves knowing that you can divide 90 by 10, and multiply it back at the end. All of those steps are knowledge, but they are applied as a skill.

  8. There is no better example of truth versus litigation than the exclusionary rule. While we can understand the motivation for excluding a truth obtained by illegal or incompetent means, one wonders why the public must be penalized rather than the police or prosecution.

    But that is neither here nor there. What once astounded me came during a media debate in the aftermath of a murder trial where the defendant went free (think OJ).

    It went like this:

    Talking Head #1: “Excuse me, but that evidence was excluded at trial.”

    Talking Head #2: “We are in the court of public opinion - not a legal court.”

    Talking Head #1: “It doesn’t matter, the evidence was still excluded.”

    Talking Head #2: “We are debating whether he actually did it, therefore we can consider what the court cannot.”

    Talking Head #1: “No, we can’t.”

    This has become the model for the media.

    Advocate, litigate, fight on every front, don’t let truth, reason or logic stand in the way.

    Then caterwaul about the loss of public trust in the media.

  9. From 1990 until about 2014 race relations in America was not considered a major issue. (I could go prior to 1990, but I will use this as a starting point since that is when I began to seriously follow politics). During that time there was but one show on CNN titled “Race in America” hosted by Soledad O’Brien and it was shown late at night on the weekends when the full time news anchors were taking the weekend off. Hardly anyone watched it and its content would be unrecognizable in today’s climate. It was a serious show that did not mention “systemic racism” or demonize police. Race issues seldom made headlines. At the time, the OJ Simpson trial was not billed as a Civil Rights or race issue and it was generally frowned upon in the media that the defense dared to inject race in the defense at all. Simpson’s famed lead defense attorney, Robert Shapiro, made a big show about ceasing all contact with Simpson and the defense team, after the verdict was announced, for Johnie Cochran’s racializing the defense (“Not only did we play the race card, we dealt it from the bottom of the deck.” said Shapiro on CNN the day of the verdict). Well into the Obama era it was normal for liberal magazines to publish long think pieces about a “post racial” America. Everything indicated that the election of Obama had changed the way America viewed the issue of race, as if it were something we had moved beyond. This was a national consensus of both left and right.

    Fast forward to today. Race has been certainly the most discussed issue for the last 6 years. Trump himself gets more coverage, for sure, but most of the coverage of Trump is related to race relations. Trump, whom NBC aired in prime time for a decade, suddenly became the face of America’s putative resentment towards minorities, however falsely and implausibly that may be. (Would NBC really give a racist a show for an entire decade? Would CNN and other news networks really provide a platform to a racist for three decades?)

    I mention this because appeals to “the truth” are useless. The national discussion changed so quickly and so dramatically that would be hard to argue that “the truth” of the issue of race somehow changed during this span of time. If America is “truly” a racist place today, then how could it not also have been for the preceding 24 years (i.e., prior to 2014)? One would have to assume there was a national conspiracy in the media based on the lie that America was not racist, only to be exposed after the first term of the nation’s first black president. What academic study or data source could ever prove what is actually the truth here?

    Debates about race relations or racism cannot ever be settled by appeals to the truth or proving the truthfulness of a claim. Liberals are now using race relations to advance a political agenda. There cannot possibly be a debate about the truthfulness of their claims about race because if their claims are proven false, then their entire agenda is exposed as a fraud. This is why we have no real debate or argument in the USA today.

  10. The left will never debate in a public forum because their arguments have no substance. Debating on the fact that one is a better virtue signaler than the next person can never win debates.

    The left is full of emotion and faux righteousness, but there is nothing more behind the curtain. There are no recommendations for solutions other than spending other people’s money, full stop.

  11. While at the same time distracting the CNN audience from black-on-black violence.

  12. The cadres were children. They were being indoctrinated. They are now in college, and the first batch are young adults.

  13. This gets to the heart of it. Liberals like to position themselves as the rational, compassionate centre whose superior morality and intellect can bring peace to the irrational, emotional factions to their left and their right—hence, the frequent use of the “both sides” framing by Quillette contributors and mainstream media alike.

    As you suggest, however, the factions don’t fit the frame. You’re either a progressive crusader with a mean-on for social justice or you’re wicked and you deserve cancellation. So it’s not left versus right; it’s progressives vs. conservatives, progressives vs. liberals, progressives vs. feminists, progressives vs. hippies, progressives vs. cops, progressives vs. some poor guy who posted something on Facebook ten years ago that’s now deemed racist and all the apologies in the world can’t erase.

  14. Sorry, I’m still figuring out this conversation system. Hijacking my own comment to expand. I’m limited to two tags so sorry.

    I appreciate everyone’s thoughts on the article. There are a couple of comments/ideas I wanted to address.

    @K_Dershem

    Even if we can partially overcome our biases and attempt to argue in good faith with our ideological opponents, we very rarely agree on what constitutes a legitimate authority.

    This is a totally fair concern, but I am convinced that we can overcome it if both sides are forced to actually put in the work. I imagine a series of questions that you move through each time you reach an impasse:

    Can we agree on any legitimate authorities?

    If not, can we agree on what data is important to properly understand the issue? Are there several disparate authorities we could use to source this data?

    If not, can we agree on what would constitute a legitimate authority?

    By drilling down into the reasons why we cannot agree, even on the data to use to resolve a dispute, we uncover the biases from which the sides are arguing.

    I have faith that such a conversation would be productive, but twitter or the internet in general feels like the wrong place. Being able to block or ghost a conversation means we stop short of really getting to the root of the differences.

    @DOK
    It’s true that lawyers cannot lie in court. That doesn’t stop them from playing all sorts of games around it.

    X.Citoyen codadmin Obamawasafool DrZ
    I hear your arguments but reject the idea that leftism or wokism should be stamped out and extinguished. This is just adopting tactics that those groups employ. Additionally, there are almost certainly good ideas within progressivism which deserve examination. Unfortunately, those good ideas have become inseparable from the anti-liberal approaches being employed to put them into place without examination or criticism. In some way, I think that the left needs saving from itself so that it can continue to provide a valid perspective on society.

    Isaiah
    I’ve tried to provide a start to the question of how we got here. The short version is: we’ve forgotten how to have truth seeking conversations and replaced them with litigious battles. It’s not clear why this is the case, but it is something I am thinking about and want others to think about as well.

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