News comes today that the Egyptian military, left in charge by the departure of President Hosni Mubarak, has dissolved parliament and suspended the constitution. The move has been applauded by the protesters -- a diverse group to be sure -- who toppled Mubarek. International reaction is likely to be ambivalent for military control of a nation is rarely, if ever, a good thing. The good news is that Egypt's military has so far not given any indication that it wants to establish a military dictatorship and its public pronouncements today have indicated a desire to draft a new, more democratic constitution and hold elections within six months.
The Egyptian people now confront that moment in the history of a nation when they must replace an old, no-longer-effective political order with something new. This is not exactly what the great modern political theorist Thomas Hobbes described as the state of nature: a time during which there is no common power to put the people of a territory in awe. When such a situation exists, according to Hobbes, people do whatever it takes to preserve themselves and cannot be faulted for whatever they do; their choices can only be evaluated as more or less well calculated to achieve self-preservation. As a result, during this time people live in a state of war, indeed a "war of all against all." "In such a condition," Hobbes tells us, "there is no place for industry, because the fruit thereof is uncertain, and consequently, no culture of the earth, no navigation, nor use of the commodities that may be imported by sea, no commodious building, no instruments of moving and removing such things as require much force, no knowledge of the face of the earth, no account of time, no arts, no letters, no society, and which is worst of all, continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short."
This is not -- yet -- the condition of Egypt. While the economy has slowed due to the unrest that preceded the downfall of Mubarak, it has not collapsed. While there were demonstrations, the level of overall unrest was relatively low and major clashes between demonstrators and the military did not occur. Indeed, perhaps the most remarkable thing about the demonstrations was the relative order and peacefulness with which they occurred and with which the government responded. Life for many in Egypt continues to be poor, brutish, and short, in part due to the policies of the Mubarak regime. But it seems clear that there is a "common power" capable of keeping people in awe -- the military -- and, as a result, the war of all against all has not materialized. Political order has not disappeared, though its nature will surely change.
The situation, therefore, reflects the time described by John Locke and Thomas Jefferson as the moment of revolution: when one government is cast out and replaced by a new one without returning the society as a whole to a state of complete disorder. Locke's description bore a strong resemblance to the so-called Glorious Revolution in England, when James II was sent packing and William and Mary were called to the throne by Parliament, establishing parliamentary sovereignty once for all. Jefferson's, of course, was meant to capture the moment of the American Revolution, when the colonists cut their ties with the king and set up their own new nation with its own independent government.
We can hope that developments in Egypt will go the way of William and Mary's England or the post-revolutionary United States. But we should be aware of the Hobbesian warning: revolutions bring disorder, and disorder can get out of hand, rendering a once "common power" perilous. When that occurs, there are two directions in which a nation and its people can go. Those who hold power can find themselves incapable of enforcing order, whether through lack of physical strength or lack of will, and as a result the state of nature returns. Afghanistan, for example, seems to be ever teetering on the edge of chaos; it is a nation in which the ability of any power to extend its reach to all of the country bespeaks a "failed state," which is to say a situation strongly resembling the Hobbesian state of nature. A even more powerful example is offered by Somalia, where no power is able to enforce its will on the nation and where life is truly solitary, poor, nasty, brutish, and short -- Somalia is the Hobbesian state of nature.
At this point, however, it does not look like Egypt will go the way of Afghanistan and Somalia. Order appears to be too deeply embedded in Egyptian society, and frankly the military appears too powerful. Today, as the military tried to persuade the last demonstrators to leave Tahrir Square, people set to work tidying up, scrubbing grafitti off statues, repainting curbs, removing litter. This reveals a deep sense of order in Egypt and suggests that the state of nature is far, far away.
But should events not move forward smoothly and consistently with the wishes of the protesters who felled Mubarak, disorder may re-emerge. If it does, there is a strong chance that the holders of power will redouble their efforts to enforce order, becoming less tolerant of dissent and much more willing to use whatever force is necessary to preserve peace.We can applaud the democratic rhetoric of those who filled Tahrir Square and the restraint so far shown by the military. We can applaud the idea of creating a commission to draft a new constitution and the promise of truly free and fair elections in the near future. But we must be mindful of the lessons of Hobbes and history: few revolutions have actually resulted in stable, long-lasting democracy.
The American case remains more an exception than the rule, surely due to the principles and actions of a truly special generation of political leaders. More typical, unfortunately, is the experience of France after 1789 where, as Hannah Arendt has argued, "constitution followed upon constitution while those in power were unable to enforce any of the revolutionary laws and decrees," resulting in "one monotonous record illustrating again and again what should have been obvious from the beginning, namely that the so-called will of a multitude (if this is to be more than a legal fiction) is ever-changing by definition, and that a structure built on it as its foundation is built on quicksand." More typical, as well, is France after 1848, when Alexis de Tocqueville, the great observer of democracy in America, participated in drafting a new constitution that soon gave way to the autocratic rule of Napoleon III. More typical, unfortunately, is the short story of the Weimar Republic in Germany, a democracy that collapsed due to a combination of factors, among which were a devastated economy and a lack of democratic political culture to help weather the inevitable storms of the first years of republican government.
If history has taught us anything it is that democratic rhetoric in revolution does not necessarily (or often) translate into stable democratic practice. Talk of democracy too often is used by those who seek power. In the wise words of Federalist No. 1, "a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
This is not to say that Egypt cannot succeed at crafting a new model for a democratic republic. It is only to suggest that we should temper our enthusiasm and not be bamboozled by the rhetoric of democracy and constitution. It is to suggest that neither the departure of Mubarak nor the formation of a constitutional commission necessarily means that democracy is coming to Egypt; nor does it mean that Egypt can avoid what the classical political philosophers always sought to emphasize -- the tendency of democracy to degenerate into class war, chaos, and ultimately tyranny. Perhaps our best hope is that Egypt (or any other nation in the region -- Yemen, for instance) avoids the fall into the sort of civil war that Hobbes saw as the essence of the state of nature.
Sunday, February 13, 2011
Sunday, February 6, 2011
Dirty Hands
The problem of "dirty hands" is a central paradox lying at the heart of politics, and of other "public" practices such as law, business, the military, and law enforcement. The problem emerges when one is confronted with a situation in which achieving a particular goal requires the violation of commonly accepted moral principles or rules. In Sartre's play of that name, the Communist leader Hoerderer says: "I have dirty hands right up to the elbows. I've plunged them in filth and blood. Do you think you can govern innocently?" Hoerderer, of course, wants to end class society, and he insists that in order to do so it is necessary to do things that the morally squeamish would find offensive and wrong. So be it. Camus' "just assassins," too, have dirty hands: they kill in order to achieve justice. As Robespierre noted during the French Revolution: if you want to make an omelet, you have to break some eggs.
The problem of dirty hands has been addressed by numerous ethical and political theorists, including a key contemporary treatment by Michael Walzer (whose analysis has influenced many, including me). But its classic version is in the works of Niccolo Machiavelli. Machiavelli famously sought to teach princes -- or political leaders in republics -- the value of learning how not to be good. His argument was that princes must sometimes act in ways that violate traditional or widely accepted moral principles if they want to be successful. Success, in the world of the Machiavellian prince, meant increased power and the glory that comes with it; in the world of a republic, it meant persistence and growth (in resources, in influence, in power) over time. In order to achieve success, it is necessary to be prepared to act in ways that are widely considered immoral: to be cruel, to lie, to break promises, to be stingy, to act aggressively, and so forth.
To do otherwise, in the world as it really is (Machiavelli insisted that he was a "realist"), makes it likely that others will take advantage of you. If you are unfailingly forgiving to those who have opposed you, they will continue to conspire against you, ultimately working your downfall. If you always tell the truth, you become prey to those who would exploit certain bits of information and to those who would lie to you. If you keep all your promises, even when the reasons for making them have disappeared, you harm your state, your nation, and undermine your own power. If you are too liberal with your (or your state's) riches, you will be plagued by never-ending requests for more, always more, until you have impoverished yourself, your government, your country. If you insist on always pursuing peace, if you give up the right to attack before being attacked, you risk the destruction of your nation, its subjection to outside powers, and the accompanying loss of liberty; maintaining liberty, in short, requires a willingness to take the offensive.
To be successful, the prince -- and, I repeat, Machiavelli's argument seems to apply just as well to all leaders who have political success in view -- must sometimes kill his opponents, lie to his enemies and even (if occasion demands it) to his friends (for friendship has no value independent of political success in this vision), deny benefits to those who need or even deserve them, violate treaties and other agreements as needed, wage war, and so on.
None of this means, I should note, that Machiavelli was, as Leo Strauss claimed he was, a "teacher of evil" -- at least not in a simple sense. Machiavelli does not praise evil; he does not say it is good. Machiavelli's language makes clear that he accepted standards of good, probably the traditional, Christian standards of his day. That's why the prince must learn how not to be good. There are rules that specify what is good, and the prince (if he is to be successful) must learn how and when to violate those rules. Of course, Machiavelli is clear that political leaders should not always violate the rules; but they must be willing to do so for purposes of self- or national aggrandizement. The rules and principles of morality, however, do not disappear. When he attacks a political opponent or a neighboring state, when he lies or breaks a treaty, the prince is not doing what is good; violating the rules is wrong, and the consequences (success) do not make it right. Quite the contrary -- when he violates the moral rules, the prince does what is not good. That is the nature of the job: it requires he (or she) who would do well, who would maintain and extend personal or national power, who would keep his (or her) place at the top of the political structure of nation or region or world, to transgress (sometimes) the proscriptions of ordinary morality.
It is important to realize that this does not mean the prince is subject to a higher morality that justifies violations of the standard moral rules. Machiavelli is not a utilitarian who seeks to dodge the deep problem here by arguing that what the prince does in violation of the moral rules is really good when placed in the scale of utility. The utilitarian insists there is nothing that is good or bad in itself: good and bad can only be determined once one has evaluated the consequences of an action for all those affected by it. This dissolves the problem of dirty hands by denying that the political actor's hands are dirty (assuming that all relevant consequences were carefully considered and entered properly into the calculation). Utilitarianism denies that something can be both bad and the right thing to do. The right thing to do at the time is simply good; it cannot be bad on a utilitarian analysis. (I set aside for now what is called "rule utilitarianism.") Thus, the utilitarian would say that torturing a prisoner who has information about a pending terrorist attack is good, not just permissible though unfortunate or sad. The torturer does not have dirty hands at all; she has not plunged them in filth and blood. She has done the right thing. She is morally good; she may even be a moral hero. The utilitarian would say that we should ignore our moral scruples about torture because nothing, not even torture, is bad in itself apart from its consequences.
There is a host of good reasons to reject utilitarianism that I won't go into here. Suffice it to say, that as Michael Walzer argues, utilitarianism is inconsistent with our moral take on things. Yes, we claim to reason on the basis of consequences, but when we do so we rarely (if ever) truly considerable the consequences of all available alternatives to everyone affected by our action, as utilitarian theory requires. Rather, we act as egoists: we think only of the consequences, often only the short-term consequences, to ourselves and our friends. So, on the one hand, despite our wish to sound utilitarian, we don't really decide things that way. On the other hand, we ultimately are not comfortable with thoroughgoing utilitarianism. How many of us really believe it is morally good to torture an innocent person (say the pre-teen child of a terrorist) in order to achieve our goal (information from the terrorist himself)? And yet utilitarianism sees no significant difference between torturing the innocent and the guilty so long as both will lead to the desired consequences. If it will work, torturing the child is the morally right thing to do. The trouble is most of us don't think that way.
The real tragic bite of the problem of dirty hands cannot be wished away by conceiving of a higher morality that dissolves the dilemma. Max Weber famously argued in "Politics as a Vocation" that the politician cannot live according the Sermon on the Mount (or according to any other "good book") because the job of the politician is to do what it takes to achieve the good for his nation (or his governing coalition, or his party). And that means that the politician, particularly when he takes up the sword and does violence to others, "does bad in order to do good." He may suffer internally as a result, but as a servant of his community he does what is necessary even when that means turning away from morality.
Machiavelli, Weber, and Walzer make us see something important about public roles. They ask us to think about whether we would want a person in these roles -- say, as president of the country, or as our defense counsel -- who always strictly adhered to commonly accepted morality. Or would we prefer someone who is willing to do what is not good if the circumstances demand it? They ask us to consider whether politics -- and public life in general -- is a place where traditional moral rules do not always apply, whether these are vocations where good people will inevitably fail and only those willing to set morality aside will succeed. If so, does that mean we should not evaluate candidates for these positions on the basis of morality but on the basis of some other standard? If so, what is that standard? And, perhaps most importantly, these theorists compel us to think about how we can hold in check the willingness to do bad into order to achieve the good. If our public figures -- politicians, business leaders, lawyers, and so on -- must be people willing to set aside high-minded moralism for the sake of the end built into the nature of their role, how can we ensure that they do not become mere tyrants, despots intent on doing bad things for the sake of evil, people who cast all standards except "success" aside no matter what that might mean?
These are tough questions, and ones that we would prefer not to think about. We are too used to falling back upon absolute standards, principles, rules. But in the muck and filth of the public world, absolute standards seem not to apply. And we have been made too comfortable by the nature of our public life, from which much corruption and violence (though not all, to be sure) has been eradicated. We do not live in a third world nation; we do not have millions of people on the Mall demanding a change of government; our democracy is stable and longstanding. But we are sometimes forced to think about dirty hands -- when presidents condone torture or invasion, when lawyers insist on the privilege to deceive, when business leaders tell us the bottom line requires them to leave millions jobless while a handful reap great profits. Let us hope we develop the resources to think about how to call these people to account in a way that doesn't imagine that their vocations can be carried out with purity of heart and soul.
The problem of dirty hands has been addressed by numerous ethical and political theorists, including a key contemporary treatment by Michael Walzer (whose analysis has influenced many, including me). But its classic version is in the works of Niccolo Machiavelli. Machiavelli famously sought to teach princes -- or political leaders in republics -- the value of learning how not to be good. His argument was that princes must sometimes act in ways that violate traditional or widely accepted moral principles if they want to be successful. Success, in the world of the Machiavellian prince, meant increased power and the glory that comes with it; in the world of a republic, it meant persistence and growth (in resources, in influence, in power) over time. In order to achieve success, it is necessary to be prepared to act in ways that are widely considered immoral: to be cruel, to lie, to break promises, to be stingy, to act aggressively, and so forth.
To do otherwise, in the world as it really is (Machiavelli insisted that he was a "realist"), makes it likely that others will take advantage of you. If you are unfailingly forgiving to those who have opposed you, they will continue to conspire against you, ultimately working your downfall. If you always tell the truth, you become prey to those who would exploit certain bits of information and to those who would lie to you. If you keep all your promises, even when the reasons for making them have disappeared, you harm your state, your nation, and undermine your own power. If you are too liberal with your (or your state's) riches, you will be plagued by never-ending requests for more, always more, until you have impoverished yourself, your government, your country. If you insist on always pursuing peace, if you give up the right to attack before being attacked, you risk the destruction of your nation, its subjection to outside powers, and the accompanying loss of liberty; maintaining liberty, in short, requires a willingness to take the offensive.
To be successful, the prince -- and, I repeat, Machiavelli's argument seems to apply just as well to all leaders who have political success in view -- must sometimes kill his opponents, lie to his enemies and even (if occasion demands it) to his friends (for friendship has no value independent of political success in this vision), deny benefits to those who need or even deserve them, violate treaties and other agreements as needed, wage war, and so on.
None of this means, I should note, that Machiavelli was, as Leo Strauss claimed he was, a "teacher of evil" -- at least not in a simple sense. Machiavelli does not praise evil; he does not say it is good. Machiavelli's language makes clear that he accepted standards of good, probably the traditional, Christian standards of his day. That's why the prince must learn how not to be good. There are rules that specify what is good, and the prince (if he is to be successful) must learn how and when to violate those rules. Of course, Machiavelli is clear that political leaders should not always violate the rules; but they must be willing to do so for purposes of self- or national aggrandizement. The rules and principles of morality, however, do not disappear. When he attacks a political opponent or a neighboring state, when he lies or breaks a treaty, the prince is not doing what is good; violating the rules is wrong, and the consequences (success) do not make it right. Quite the contrary -- when he violates the moral rules, the prince does what is not good. That is the nature of the job: it requires he (or she) who would do well, who would maintain and extend personal or national power, who would keep his (or her) place at the top of the political structure of nation or region or world, to transgress (sometimes) the proscriptions of ordinary morality.
It is important to realize that this does not mean the prince is subject to a higher morality that justifies violations of the standard moral rules. Machiavelli is not a utilitarian who seeks to dodge the deep problem here by arguing that what the prince does in violation of the moral rules is really good when placed in the scale of utility. The utilitarian insists there is nothing that is good or bad in itself: good and bad can only be determined once one has evaluated the consequences of an action for all those affected by it. This dissolves the problem of dirty hands by denying that the political actor's hands are dirty (assuming that all relevant consequences were carefully considered and entered properly into the calculation). Utilitarianism denies that something can be both bad and the right thing to do. The right thing to do at the time is simply good; it cannot be bad on a utilitarian analysis. (I set aside for now what is called "rule utilitarianism.") Thus, the utilitarian would say that torturing a prisoner who has information about a pending terrorist attack is good, not just permissible though unfortunate or sad. The torturer does not have dirty hands at all; she has not plunged them in filth and blood. She has done the right thing. She is morally good; she may even be a moral hero. The utilitarian would say that we should ignore our moral scruples about torture because nothing, not even torture, is bad in itself apart from its consequences.
There is a host of good reasons to reject utilitarianism that I won't go into here. Suffice it to say, that as Michael Walzer argues, utilitarianism is inconsistent with our moral take on things. Yes, we claim to reason on the basis of consequences, but when we do so we rarely (if ever) truly considerable the consequences of all available alternatives to everyone affected by our action, as utilitarian theory requires. Rather, we act as egoists: we think only of the consequences, often only the short-term consequences, to ourselves and our friends. So, on the one hand, despite our wish to sound utilitarian, we don't really decide things that way. On the other hand, we ultimately are not comfortable with thoroughgoing utilitarianism. How many of us really believe it is morally good to torture an innocent person (say the pre-teen child of a terrorist) in order to achieve our goal (information from the terrorist himself)? And yet utilitarianism sees no significant difference between torturing the innocent and the guilty so long as both will lead to the desired consequences. If it will work, torturing the child is the morally right thing to do. The trouble is most of us don't think that way.
The real tragic bite of the problem of dirty hands cannot be wished away by conceiving of a higher morality that dissolves the dilemma. Max Weber famously argued in "Politics as a Vocation" that the politician cannot live according the Sermon on the Mount (or according to any other "good book") because the job of the politician is to do what it takes to achieve the good for his nation (or his governing coalition, or his party). And that means that the politician, particularly when he takes up the sword and does violence to others, "does bad in order to do good." He may suffer internally as a result, but as a servant of his community he does what is necessary even when that means turning away from morality.
Machiavelli, Weber, and Walzer make us see something important about public roles. They ask us to think about whether we would want a person in these roles -- say, as president of the country, or as our defense counsel -- who always strictly adhered to commonly accepted morality. Or would we prefer someone who is willing to do what is not good if the circumstances demand it? They ask us to consider whether politics -- and public life in general -- is a place where traditional moral rules do not always apply, whether these are vocations where good people will inevitably fail and only those willing to set morality aside will succeed. If so, does that mean we should not evaluate candidates for these positions on the basis of morality but on the basis of some other standard? If so, what is that standard? And, perhaps most importantly, these theorists compel us to think about how we can hold in check the willingness to do bad into order to achieve the good. If our public figures -- politicians, business leaders, lawyers, and so on -- must be people willing to set aside high-minded moralism for the sake of the end built into the nature of their role, how can we ensure that they do not become mere tyrants, despots intent on doing bad things for the sake of evil, people who cast all standards except "success" aside no matter what that might mean?
These are tough questions, and ones that we would prefer not to think about. We are too used to falling back upon absolute standards, principles, rules. But in the muck and filth of the public world, absolute standards seem not to apply. And we have been made too comfortable by the nature of our public life, from which much corruption and violence (though not all, to be sure) has been eradicated. We do not live in a third world nation; we do not have millions of people on the Mall demanding a change of government; our democracy is stable and longstanding. But we are sometimes forced to think about dirty hands -- when presidents condone torture or invasion, when lawyers insist on the privilege to deceive, when business leaders tell us the bottom line requires them to leave millions jobless while a handful reap great profits. Let us hope we develop the resources to think about how to call these people to account in a way that doesn't imagine that their vocations can be carried out with purity of heart and soul.
Tuesday, January 25, 2011
State of the Union
Tonight President Obama will deliver the State of the Union address before Congress. It will be followed, as always, by responses from the opposing party (two this year, evidently, since Michelle Bachman has tossed her Tea Party hat into the ring of replies). It will also be followed by millions of words of reportage and analysis in the media, in the blogs, and around the water cooler. The unfortunate thing is that none of these -- the address, the responses, the commentaries -- will really assess the state of the union today.
The bulk of the verbiage surrounding the president's address will be focused on various policy considerations: health care, cutting the budget, the ongoing wars. These are important topics and should be the focus of a major policy speech. And it makes all the sense in the world for the opposing party to make its own statement on these policy issues. But note that I refer to these topics as appropriate in a "policy speech." Over the years, the State of the Union address has become just that -- a speech in which the president outlines his preferred policies and tries to sell them to the viewers. I am not an expert on the history of the address, so I do not know when what the Framers described as "Information on the State of the Union" morphed into the advocacy of "Measures he shall judge necessary and expedient" -- probably very early in our history. For quite some time now the State of the Union has been much less about the condition of the country and much, much more about the administration's policy agenda. Worse, it has turned into a free opportunity for the president to play host to "guests," usually seated next to the president's wife, who reflect the priorities of the administration. The guests are not just invited to attend; they have a function -- they are used to make a point. They are props for the president's dramatic performance, shuttled forth to lend policy a human touch in an effort to sway not by the power of reasoning but by the strength of the tugs on the heart strings.
So what we will see tonight will be a political speech, one not out of place on the hustings, followed by two even more political speeches suitable for the editorial pages of conservative journals. The opportunity to enter into a serious conversation about the real state of the union will be lost once again.
That is too bad, for our nation is not in good shape. Only part of the problem lies with the slumbering economy, with its frighteningly high jobless rate and its foreclosure crisis. Some of the problem lies in the disastrous state of our health care system, something the ongoing battle over health care reform only serves to cover up. Some of the problem lies in the bill that will inevitably come due from all those expenses we have deferred over the years, and all those borrowings from the resources available to future generations.
The problem is much deeper. It lies in the amazingly widespread lack of knowledge about the principles upon which the nation was founded. Very few in our nation understand what prompted the creation of our nation, or its reconfiguration through the Constitution. Very few voters and an equally small percentage of politicians share a sense that government exists to foster the common good, not the good of particular groups, parties, industries, or leaders. Many people have a sense that we are subjects of government not governors -- that government is something done to us rather than something we do together. Most lack the knowledge, skills, and dispositions essential to become active participants in the debate, deliberation, and action necessary for a truly constitutional republic to thrive. Most think of a citizen as simply a voter and a patriot as simply someone who cheers for the home team, waving his flag, sporting her flag pin, decorating with flag decals, filling the air with nationalistic bluster.
Our problem lies in the twisting of our founding documents (the Declaration, the Constitution) into justifications for partisan political positions -- an activity engaged in by many on both sides of the political fence, from Supreme Court justices to talk show hosts. This style of twisting has a long tradition, to be sure, but at least some consideration should be given to the possibility that other, more fruitful and more justifiable approaches to these documents have been undermined, if not lost altogether in recent decades. And it cannot help that many of our citizens (not to mention our politicos and even many of our judges) believe that the fundamental documents of a constitutional republic should be subjected to simplistic, even silly, modes of analysis. Such a predilection cannot adequately help us wend our way through the vicissitudes of the ongoing project of governing ourselves in a constitutional manner.
Part of the problem, too, lies in the incivility of life in general, and of politics in particular. It lies in what seems to be an increasing tendency to glorify ignorance and stupidity and to belittle intelligence, education, and thoughtfulness -- in the rise of fools and the disappearance of real statesmen, in the prominence of bluster, nonsense, and nastiness and the absence of real thought and reasoned discussion, let alone deliberation. It lies in the quick reliance on self-defensiveness when suggestions are made that discourse could stand to be more civil, and the quick assertion of rights in the face of ethical critique.
Some of our problem lies in what literary scholar Rochelle Gurstein calls "the repeal of reticence," as all limits are dropped, all sense of propriety is pooh-poohed, all words and images are allowed no matter what the context -- as if liberty means nothing more than challenging boundaries so as to free us up to gratify our natural (formerly called "baser") instincts and desires. Don't get me wrong here -- there are plenty of newly minted boundaries out there, some of them silly, some of them unjust and oppressive, all of them enforced with a cultural rigor that lends credence to the concerns of Mill or Tocqueville. We are still the children of the Puritans. No matter what our political leanings, no matter what our educational level, many of us find it easy to castigate others who fail to live up to our standards of propriety -- whether they do so by being overweight, smoking, failing to exercise, or by refusing to abide any of a myriad of fundamentalisms (religious, economic, or political) by which we structure our vision of the world. Indeed, this is also part of the problem: we too quickly slide into treating fellow citizens as infidels, as beneath our concern, as not deserving of respect. We too easily reject members of our community as beyond the pale. And when we do, our overall societal lack of reticence permits us to talk about these folks as if they are enemies to be wiped out. As the crowning touch, we call this freedom.
Of course we cannot expect the president to talk about these things. We have grown unused to political leaders -- or would-be leaders -- speaking the truth about things. We expect them to paint a rosy picture, to fire us up, to pat us on the head and tell us how wonderful we are. And we expect them to tell us how destructive the views of their political opponents really are of the welfare of our nation. All this is rhetoric, of course, and rhetoric has its place in politics (as political thinkers as diverse as Aristotle and Hobbes both recognized). But let us not fool ourselves into thinking tonight's speeches will rise above the ongoing campaign that is Washington to enlighten us about the real state of the union. They will not.
The bulk of the verbiage surrounding the president's address will be focused on various policy considerations: health care, cutting the budget, the ongoing wars. These are important topics and should be the focus of a major policy speech. And it makes all the sense in the world for the opposing party to make its own statement on these policy issues. But note that I refer to these topics as appropriate in a "policy speech." Over the years, the State of the Union address has become just that -- a speech in which the president outlines his preferred policies and tries to sell them to the viewers. I am not an expert on the history of the address, so I do not know when what the Framers described as "Information on the State of the Union" morphed into the advocacy of "Measures he shall judge necessary and expedient" -- probably very early in our history. For quite some time now the State of the Union has been much less about the condition of the country and much, much more about the administration's policy agenda. Worse, it has turned into a free opportunity for the president to play host to "guests," usually seated next to the president's wife, who reflect the priorities of the administration. The guests are not just invited to attend; they have a function -- they are used to make a point. They are props for the president's dramatic performance, shuttled forth to lend policy a human touch in an effort to sway not by the power of reasoning but by the strength of the tugs on the heart strings.
So what we will see tonight will be a political speech, one not out of place on the hustings, followed by two even more political speeches suitable for the editorial pages of conservative journals. The opportunity to enter into a serious conversation about the real state of the union will be lost once again.
That is too bad, for our nation is not in good shape. Only part of the problem lies with the slumbering economy, with its frighteningly high jobless rate and its foreclosure crisis. Some of the problem lies in the disastrous state of our health care system, something the ongoing battle over health care reform only serves to cover up. Some of the problem lies in the bill that will inevitably come due from all those expenses we have deferred over the years, and all those borrowings from the resources available to future generations.
The problem is much deeper. It lies in the amazingly widespread lack of knowledge about the principles upon which the nation was founded. Very few in our nation understand what prompted the creation of our nation, or its reconfiguration through the Constitution. Very few voters and an equally small percentage of politicians share a sense that government exists to foster the common good, not the good of particular groups, parties, industries, or leaders. Many people have a sense that we are subjects of government not governors -- that government is something done to us rather than something we do together. Most lack the knowledge, skills, and dispositions essential to become active participants in the debate, deliberation, and action necessary for a truly constitutional republic to thrive. Most think of a citizen as simply a voter and a patriot as simply someone who cheers for the home team, waving his flag, sporting her flag pin, decorating with flag decals, filling the air with nationalistic bluster.
Our problem lies in the twisting of our founding documents (the Declaration, the Constitution) into justifications for partisan political positions -- an activity engaged in by many on both sides of the political fence, from Supreme Court justices to talk show hosts. This style of twisting has a long tradition, to be sure, but at least some consideration should be given to the possibility that other, more fruitful and more justifiable approaches to these documents have been undermined, if not lost altogether in recent decades. And it cannot help that many of our citizens (not to mention our politicos and even many of our judges) believe that the fundamental documents of a constitutional republic should be subjected to simplistic, even silly, modes of analysis. Such a predilection cannot adequately help us wend our way through the vicissitudes of the ongoing project of governing ourselves in a constitutional manner.
Part of the problem, too, lies in the incivility of life in general, and of politics in particular. It lies in what seems to be an increasing tendency to glorify ignorance and stupidity and to belittle intelligence, education, and thoughtfulness -- in the rise of fools and the disappearance of real statesmen, in the prominence of bluster, nonsense, and nastiness and the absence of real thought and reasoned discussion, let alone deliberation. It lies in the quick reliance on self-defensiveness when suggestions are made that discourse could stand to be more civil, and the quick assertion of rights in the face of ethical critique.
Some of our problem lies in what literary scholar Rochelle Gurstein calls "the repeal of reticence," as all limits are dropped, all sense of propriety is pooh-poohed, all words and images are allowed no matter what the context -- as if liberty means nothing more than challenging boundaries so as to free us up to gratify our natural (formerly called "baser") instincts and desires. Don't get me wrong here -- there are plenty of newly minted boundaries out there, some of them silly, some of them unjust and oppressive, all of them enforced with a cultural rigor that lends credence to the concerns of Mill or Tocqueville. We are still the children of the Puritans. No matter what our political leanings, no matter what our educational level, many of us find it easy to castigate others who fail to live up to our standards of propriety -- whether they do so by being overweight, smoking, failing to exercise, or by refusing to abide any of a myriad of fundamentalisms (religious, economic, or political) by which we structure our vision of the world. Indeed, this is also part of the problem: we too quickly slide into treating fellow citizens as infidels, as beneath our concern, as not deserving of respect. We too easily reject members of our community as beyond the pale. And when we do, our overall societal lack of reticence permits us to talk about these folks as if they are enemies to be wiped out. As the crowning touch, we call this freedom.
Of course we cannot expect the president to talk about these things. We have grown unused to political leaders -- or would-be leaders -- speaking the truth about things. We expect them to paint a rosy picture, to fire us up, to pat us on the head and tell us how wonderful we are. And we expect them to tell us how destructive the views of their political opponents really are of the welfare of our nation. All this is rhetoric, of course, and rhetoric has its place in politics (as political thinkers as diverse as Aristotle and Hobbes both recognized). But let us not fool ourselves into thinking tonight's speeches will rise above the ongoing campaign that is Washington to enlighten us about the real state of the union. They will not.
Saturday, January 8, 2011
Incivility and Degeneration
Today comes news of the shooting of an Arizona congresswoman at an event for constituents in Tucson, Arizona. Rep. Gabrielle Giffords is in critical condition after surgery to address the damage caused by a gunshot wound to the head. So far, six have died in the shooting, including a U.S. District Court Judge John M. Roll and a nine year-old child. The United States now takes its place with a host of Third World nations whose politicians and judges are not safe in public. It is a sad day for our constitutional democracy.
Since very little is presently known about the assailant, it would be presumptuous to say too much about what this incident reveals. I do think, however, that it suggests something about the current state of American politics. There can be little question that the increasing incivility of our politics -- revealed in threats against public officials, in the inflated and shrill rhetoric of our politicians, in the emergence in the media and on the hustings of public figures who speak the language of hate and disrespect -- contributes to the likelihood that events like today's will occur. We know that Rep. Giffords (and, for that matter, Judge Roll) have taken positions on political and legal matters that many of the loudest, most uncivil voices in our nation find not just wrong but offensive. We know that the voices of intolerance that increasingly pervade our media and, unfortunately, our political campaigns claim that people who take certain legislative positions, or interpret the law in certain ways, are not just wrong but intolerable. When the message is everywhere that certain points of view, even points of view that have long been considered within the mainstream, border on the treasonous, when the idea that some kinds of people and some kinds of ideas should be hated rather than respected, extremism in action can be expected. When the political "discussion" in some states routinely reveals a level of intolerance, prejudice, and disgust toward fellow human beings, it should not surprise us that those states become the sites of behavior we associate with uncivilized lands and not the United States. It does no good to say that the nastiness is just talk, that it is simply a matter of electoral strategy -- for if the messages are persistent enough, if they are pervasive enough, ordinary citizens begin to take them for truth rather than tactics.
The classical political philosophers argued that all political systems, including democracies, have a natural tendency to degenerate. The American Founders sought to craft a system that would resist this tendency. We should be proud that our republic has survived more than 200 years and some very deep social divides. But republics can only persist so long as all citizens, including politicians, recognize each other as fellows, as companions in the ongoing constitutional project. In other words, degeneration occurs when incivility replaces mutual respect. All of us should do all we can to halt this process. I hope it's not too late.
Since very little is presently known about the assailant, it would be presumptuous to say too much about what this incident reveals. I do think, however, that it suggests something about the current state of American politics. There can be little question that the increasing incivility of our politics -- revealed in threats against public officials, in the inflated and shrill rhetoric of our politicians, in the emergence in the media and on the hustings of public figures who speak the language of hate and disrespect -- contributes to the likelihood that events like today's will occur. We know that Rep. Giffords (and, for that matter, Judge Roll) have taken positions on political and legal matters that many of the loudest, most uncivil voices in our nation find not just wrong but offensive. We know that the voices of intolerance that increasingly pervade our media and, unfortunately, our political campaigns claim that people who take certain legislative positions, or interpret the law in certain ways, are not just wrong but intolerable. When the message is everywhere that certain points of view, even points of view that have long been considered within the mainstream, border on the treasonous, when the idea that some kinds of people and some kinds of ideas should be hated rather than respected, extremism in action can be expected. When the political "discussion" in some states routinely reveals a level of intolerance, prejudice, and disgust toward fellow human beings, it should not surprise us that those states become the sites of behavior we associate with uncivilized lands and not the United States. It does no good to say that the nastiness is just talk, that it is simply a matter of electoral strategy -- for if the messages are persistent enough, if they are pervasive enough, ordinary citizens begin to take them for truth rather than tactics.
The classical political philosophers argued that all political systems, including democracies, have a natural tendency to degenerate. The American Founders sought to craft a system that would resist this tendency. We should be proud that our republic has survived more than 200 years and some very deep social divides. But republics can only persist so long as all citizens, including politicians, recognize each other as fellows, as companions in the ongoing constitutional project. In other words, degeneration occurs when incivility replaces mutual respect. All of us should do all we can to halt this process. I hope it's not too late.
The Constitutional Cloak
This week, as the new Congress began its business, we were treated to the spectacle of members of the House of Representatives reading the text of the Constitution from the podium -- the whole text (well, almost), out loud, spurred by a desire on the part of the Tea Party and others to remind Congress of the centrality of the Constitution to American government. Of course, despite the belief of many, many Constitution-wavers across the country (and in the halls of Congress), there is no "pure" version of the founding document -- parts of it have changed, parts of it have been replaced, the whole thing has been amended twenty-seven times -- so decisions had to be made about what to read and what to leave out. And, like all things in Congress these days, those decisions were controversial.
For instance, the decision to leave out the various references to slavery in the original document prompted some members to chastise the Republican sponsors of the reading for presenting a censored version of the document that whitewashed the troubled history of the nation and the way in which the Constitution has changed and grown over the centuries to reflect changing mores and values. Of course, the amendment process that led to those changes in the original document was itself part of the original -- so in that sense the amendments are a part of the document in a way that Supreme Court decisions are not. And we should always keep in mind that the Constitution does not refer specifically to "slavery," for the Framers chose always to use some other expression or euphemism: the "three-fifths clause" speaks of "all other persons"; the "fugitive slave clause" refers to a "Person held to Service or Labour"; Article 1, Section 9, in prohibiting Congress from interfering with the "slave trade" (without calling it that) until 1808, speaks only of "such Persons as any of the States now existing shall think proper to admit." The words "slave" and "slavery" do not appear until the Civil War Amendments.
From the reports I saw, about one-third of the members of the House attended the reading.That is a sad commentary on the state of things in Washington. What were those other members doing? Taking a stand against the reading of the Constitution? Why? Just because it was sponsored by the wrong folks? Did they believe this was simply "political theater" (a term I heard in one of the news reports)? It was, but that does not necessarily undermine the value of the exercise. All Americans, not least of all our elected representatives, should become vastly more familiar with the Constitution. The Constitution is central to what it means to be an American citizen -- so knowledge and understanding of the Constitution is fundamental to good citizenship in the United States. Not many have actually read the entire Constitution, and that includes, I suspect, an unfortunately high percentage of those who have taken an oath to defend it. By reading the Constitution from the floor of the House, an example is set that should be emulated rather than castigated.
We need to spend more time thinking about our Constitution and about the characteristics of constitutionalism, and so turning Constitution-reading into a partisan event is unfortunate. In fact, it may be fatal to the kind of spirit essential to successful constitutional democracy. The critics of the reading in the House have a point to the extent that some politicians seek to use the Constitution as a cloak in which to wrap a particular set of political views. The Constitution, of course, does embody certain political views, but they are not those of the Tea Party any more than they are of liberal Democrats. The Constitution reflects the view of a generation of American statesmen (and a handful of women), more than 200 years ago, that constitutional democracy was preferable to monarchy (even constitutional monarchy of the British sort). Those statesmen also believed that constitutional democracy was preferable to the sort of decentralized democracy espoused by the civic republican tradition as translated into American thinking by some of those labeled "anti-federalists." The Constitution, in other words, had nothing to do with favoring certain kinds of policies over others (say, government-run health care over insurance company-run health care). Rather, it sought to establish a moderate constitutional democracy that combined both national and state power, and it sought to establish it in the face of those who preferred the certainties of a centralized monarchy and of those who preferred to keep all power (except some national defense functions) in the hands of state governments.
The key feature of the Constitution is that it places significant limits on both the power of the people and the power of the government. It does not establish a democracy, if by that term we mean a system in which the majority rules (no matter what it wants to do), for much of the Constitution and all of the Bill of Rights is specifically aimed at stopping the people from using their government to do certain things. In fact, it was the experience of democracy during the 1780s that prompted many of the Framers to call for both a stronger national government and limits on the responsiveness of government to popular whim. Many of the Framers had come to fear state governments and they set out to build a much stronger national government -- a government removed from the people by size, distance, and a body of institutional mechanisms (including the Electoral College and the indirect election of senators) that insulated national government from the whimsical meddling of the people. The non-democratic features of the Constitution have been recognized by critics (then and now), and their complaints about it filled the newspapers and broadsheets of the day and the academic studies of today.
Constitutional democracy is preserved by a balance of forces: state vs. national, legislative vs. executive vs. judicial branches, House vs. Senate, and so forth. The Constitution was a brilliant attempt by a body of statesmen -- some wise, some narrow-minded; some nationalists, others not -- to craft a constitutional democracy, to establish a structure and a pattern that would persist through time. All of them -- a point that cannot be made strongly enough given the silly ideas associated with shallower forms of originalism -- believed that the Constitution would either change over time or fail, and it would change not just through the amendment process but also because its terms would take on new meanings as the world itself changed. (Madison made this point clearly in Federalist 37.) It was, after all, a structure designed to last in a changing world, a framework capable of adjusting to new conditions as they arose. It was not an attempt to create a Platonic ideal state that would avoid the nasty tendency of material reality to change over time. The Constitution is not scripture -- for it is not the Word of God but the flawed attempt of humans to find some little bit of stability in a political world. That means, of course, that while the Constitution lies at the heart of what it means to be an American, it is not a sacred document and should not be treated as such.
The reading of Constitution this week could have been an important step in strengthening constitutionalism. The sad thing about what actually happened was that the occasion was treated by some as a chance to don the document as a cloak for their controversial political predilections. It is also unfortunate that many in our society, including many in Congress, continue to treat the Constitution as if it were something handed down from heaven, something worthy of worship, something sacrosanct, something with some deep, original meaning that must not to be violated.
Finally, it is sad that some reject the very idea of reading the Constitution in public. For even if the reading in the House was a mere "happening" set up by those seeking to score political points, familiarity with the founding document of our constitutional democracy should be encouraged, And the reading itself could have been used to remind all citizens of the importance of the document without reducing it to a political statement. The point could have been made that the Constitution is not something to be worshiped; rather, it establishes a framework within which the people can pursue the common good. The point could have been made that the Constitution is about constitutionalism and not about Republicans and Democrats.
For instance, the decision to leave out the various references to slavery in the original document prompted some members to chastise the Republican sponsors of the reading for presenting a censored version of the document that whitewashed the troubled history of the nation and the way in which the Constitution has changed and grown over the centuries to reflect changing mores and values. Of course, the amendment process that led to those changes in the original document was itself part of the original -- so in that sense the amendments are a part of the document in a way that Supreme Court decisions are not. And we should always keep in mind that the Constitution does not refer specifically to "slavery," for the Framers chose always to use some other expression or euphemism: the "three-fifths clause" speaks of "all other persons"; the "fugitive slave clause" refers to a "Person held to Service or Labour"; Article 1, Section 9, in prohibiting Congress from interfering with the "slave trade" (without calling it that) until 1808, speaks only of "such Persons as any of the States now existing shall think proper to admit." The words "slave" and "slavery" do not appear until the Civil War Amendments.
From the reports I saw, about one-third of the members of the House attended the reading.That is a sad commentary on the state of things in Washington. What were those other members doing? Taking a stand against the reading of the Constitution? Why? Just because it was sponsored by the wrong folks? Did they believe this was simply "political theater" (a term I heard in one of the news reports)? It was, but that does not necessarily undermine the value of the exercise. All Americans, not least of all our elected representatives, should become vastly more familiar with the Constitution. The Constitution is central to what it means to be an American citizen -- so knowledge and understanding of the Constitution is fundamental to good citizenship in the United States. Not many have actually read the entire Constitution, and that includes, I suspect, an unfortunately high percentage of those who have taken an oath to defend it. By reading the Constitution from the floor of the House, an example is set that should be emulated rather than castigated.
We need to spend more time thinking about our Constitution and about the characteristics of constitutionalism, and so turning Constitution-reading into a partisan event is unfortunate. In fact, it may be fatal to the kind of spirit essential to successful constitutional democracy. The critics of the reading in the House have a point to the extent that some politicians seek to use the Constitution as a cloak in which to wrap a particular set of political views. The Constitution, of course, does embody certain political views, but they are not those of the Tea Party any more than they are of liberal Democrats. The Constitution reflects the view of a generation of American statesmen (and a handful of women), more than 200 years ago, that constitutional democracy was preferable to monarchy (even constitutional monarchy of the British sort). Those statesmen also believed that constitutional democracy was preferable to the sort of decentralized democracy espoused by the civic republican tradition as translated into American thinking by some of those labeled "anti-federalists." The Constitution, in other words, had nothing to do with favoring certain kinds of policies over others (say, government-run health care over insurance company-run health care). Rather, it sought to establish a moderate constitutional democracy that combined both national and state power, and it sought to establish it in the face of those who preferred the certainties of a centralized monarchy and of those who preferred to keep all power (except some national defense functions) in the hands of state governments.
The key feature of the Constitution is that it places significant limits on both the power of the people and the power of the government. It does not establish a democracy, if by that term we mean a system in which the majority rules (no matter what it wants to do), for much of the Constitution and all of the Bill of Rights is specifically aimed at stopping the people from using their government to do certain things. In fact, it was the experience of democracy during the 1780s that prompted many of the Framers to call for both a stronger national government and limits on the responsiveness of government to popular whim. Many of the Framers had come to fear state governments and they set out to build a much stronger national government -- a government removed from the people by size, distance, and a body of institutional mechanisms (including the Electoral College and the indirect election of senators) that insulated national government from the whimsical meddling of the people. The non-democratic features of the Constitution have been recognized by critics (then and now), and their complaints about it filled the newspapers and broadsheets of the day and the academic studies of today.
Constitutional democracy is preserved by a balance of forces: state vs. national, legislative vs. executive vs. judicial branches, House vs. Senate, and so forth. The Constitution was a brilliant attempt by a body of statesmen -- some wise, some narrow-minded; some nationalists, others not -- to craft a constitutional democracy, to establish a structure and a pattern that would persist through time. All of them -- a point that cannot be made strongly enough given the silly ideas associated with shallower forms of originalism -- believed that the Constitution would either change over time or fail, and it would change not just through the amendment process but also because its terms would take on new meanings as the world itself changed. (Madison made this point clearly in Federalist 37.) It was, after all, a structure designed to last in a changing world, a framework capable of adjusting to new conditions as they arose. It was not an attempt to create a Platonic ideal state that would avoid the nasty tendency of material reality to change over time. The Constitution is not scripture -- for it is not the Word of God but the flawed attempt of humans to find some little bit of stability in a political world. That means, of course, that while the Constitution lies at the heart of what it means to be an American, it is not a sacred document and should not be treated as such.
The reading of Constitution this week could have been an important step in strengthening constitutionalism. The sad thing about what actually happened was that the occasion was treated by some as a chance to don the document as a cloak for their controversial political predilections. It is also unfortunate that many in our society, including many in Congress, continue to treat the Constitution as if it were something handed down from heaven, something worthy of worship, something sacrosanct, something with some deep, original meaning that must not to be violated.
Finally, it is sad that some reject the very idea of reading the Constitution in public. For even if the reading in the House was a mere "happening" set up by those seeking to score political points, familiarity with the founding document of our constitutional democracy should be encouraged, And the reading itself could have been used to remind all citizens of the importance of the document without reducing it to a political statement. The point could have been made that the Constitution is not something to be worshiped; rather, it establishes a framework within which the people can pursue the common good. The point could have been made that the Constitution is about constitutionalism and not about Republicans and Democrats.
Monday, December 20, 2010
Is Atticus Finch a Model Attorney?
Last week I had the pleasure of being on a panel with Judge Geoffrey Crawford, Dean Shirley Jefferson, and Dan Richardson that examined the iconic status in the legal profession of Atticus Finch, the key figure in Harper Lee's To Kill a Mockingbird. Finch has long been held up as a model of the professional practice of law and many have chosen a legal career with Finch in mind as an ideal.
The program sought to examine Finch as a lawyer and the conversation was vigorous. My own view is that, while Finch may well be something of a model, wholehearted, unconditional approval of all that he does, of his approach to law, to its practice, and to the legal system in the racially charged, and racially prejudiced, South of the 1930s would be a mistake. Finch may be a hero of a sort, but the nature of his heroism (if such it be) can only be uncovered once we appreciate the complexity of his character.
Ask anyone who has read the book or seen the film starring Gregory Peck, and you will be told that Finch is nothing if he's not honest. But is he really? When his behavior is probed it becomes clear that his honesty is complex, if not something that he is content to compromise as needed. Recall the scene at the end of the story where he goes along with Sheriff Tate's "story" about the death of Bob Ewell. You will remember that Ewell was killed by Boo Radley, acting in defense of Finch's children. Tate says it would be a shame to subject the reclusive Boo to the publicity of a public trial, even if his defense would ultimately be successful. "Bob Ewell fell on his knife!" asserts Tate. Finch at first thought his son, Jem, had killed Ewell in self-defense. He was willing to put Jem through a trial and was already calculating the sort of defense he would offer. But Tate makes it clear that's not what happened, and persuades Finch to accept the "fell on his knife" version of events. Finch even jumps in to tell his daughter, Scout, that this is what happened, despite her own observations to the contrary -- something that under other circumstances might qualify as witness tampering.
What are we to make of this willingness to bend the truth for the sake of the peace of mind of Arthur Radley? Honesty and truthfulness seem to play little part in this "avoid the legal system" strategy. And, indeed, this strategy is fully consistent with an aspect of Finch that is depicted throughout the book (less so in the film): his strong sense that there is a distinct hierarchy in society, that the Ewells are at the bottom of it, that they are "outlaws" in the sense that legal rules do not apply to them, and that the function of the legal system is to perpetuate the social hierarchy. Early in the novel, when Scout asks why the Ewell children only have to go to school on the first day of each year, Finch explains that law is for folks like Scout but not for the Ewells. Scout has to follow the rules, and in return can expect the protection, of the law; but not so the Ewells -- neither the duties nor the protections of the rule of law belong to them. Given this view of social hierarchy, and of the role of the legal system in perpetuating it, it is no wonder Finch instructs his daughter: "Bob Ewell fell on his knife!"
Finch's sense of social hierarchy appears most strongly, however, in the defense he presents in the rape trial of Tom Robinson. In his closing argument, Finch seeks to persuade the jury that the real guilty party in the courtroom is not Robinson, but Mayella Ewell, the alleged victim. His defense consists in a steady and heartless attack on the victim. He makes clear that the Ewells are "white trash," that they are pitiable when they are not drunk and downright mean, that violence and abuse are part of their everyday life, that Mayella broke the Southern code by desiring physical affection from a black man. He hopes to convince the jury that the Ewells rank below upstanding, hardworking blacks like Tom Robinson, and that it would be a shame to believe a Ewell instead of accepting Tom's story.
This defense should deeply trouble those who see Finch as some sort of liberal hero who runs great risks to challenge the racism of the South. Sure, there is some challenge here to racial hierarchy, but it consists in the attempt to substitute a different prejudice for racial prejudice. "Some people are below the level of civilization," Finch seems to be saying, "and those people do not deserve to be protected in the same way other whites do. In fact, they should not even be preferred to blacks!" Mayella broke the code of good, southern, white behavior -- and in doing so she has forfeited her right to be given the benefit of the doubt in this case.
So Finch's sense of justice is structured by a powerful sense of hierarchy. While he talks about the legal system being the one place in America where everyone is treated equally, all he ultimately seems to mean is that those who work hard and do not challenge the basic structure of society should be treated equally in court. The Ewells do not work hard and they are "uppity" -- they are rude, they do not know how to treat respectable people (like Judge Taylor and Finch himself), they are disrespectful of society's rules and society's leaders. Tom Robinson works hard, keeps his eyes lowered, and tries to be helpful (even subservient) to "white folks." Tom Robinson accepts the structure of society and shows the proper respect for "his betters." The Ewells don't.
Apply a system that treats people equally to a society in which people are unequal, and the inequality is reproduced. Far from challenging the inequality of southern society, Finch seems more bent on ridding that society of its undesirable elements while preserving the existing status hierarchy.
What does this tell us about professionalism? Is Finch a model? If so, of what?
The program sought to examine Finch as a lawyer and the conversation was vigorous. My own view is that, while Finch may well be something of a model, wholehearted, unconditional approval of all that he does, of his approach to law, to its practice, and to the legal system in the racially charged, and racially prejudiced, South of the 1930s would be a mistake. Finch may be a hero of a sort, but the nature of his heroism (if such it be) can only be uncovered once we appreciate the complexity of his character.
Ask anyone who has read the book or seen the film starring Gregory Peck, and you will be told that Finch is nothing if he's not honest. But is he really? When his behavior is probed it becomes clear that his honesty is complex, if not something that he is content to compromise as needed. Recall the scene at the end of the story where he goes along with Sheriff Tate's "story" about the death of Bob Ewell. You will remember that Ewell was killed by Boo Radley, acting in defense of Finch's children. Tate says it would be a shame to subject the reclusive Boo to the publicity of a public trial, even if his defense would ultimately be successful. "Bob Ewell fell on his knife!" asserts Tate. Finch at first thought his son, Jem, had killed Ewell in self-defense. He was willing to put Jem through a trial and was already calculating the sort of defense he would offer. But Tate makes it clear that's not what happened, and persuades Finch to accept the "fell on his knife" version of events. Finch even jumps in to tell his daughter, Scout, that this is what happened, despite her own observations to the contrary -- something that under other circumstances might qualify as witness tampering.
What are we to make of this willingness to bend the truth for the sake of the peace of mind of Arthur Radley? Honesty and truthfulness seem to play little part in this "avoid the legal system" strategy. And, indeed, this strategy is fully consistent with an aspect of Finch that is depicted throughout the book (less so in the film): his strong sense that there is a distinct hierarchy in society, that the Ewells are at the bottom of it, that they are "outlaws" in the sense that legal rules do not apply to them, and that the function of the legal system is to perpetuate the social hierarchy. Early in the novel, when Scout asks why the Ewell children only have to go to school on the first day of each year, Finch explains that law is for folks like Scout but not for the Ewells. Scout has to follow the rules, and in return can expect the protection, of the law; but not so the Ewells -- neither the duties nor the protections of the rule of law belong to them. Given this view of social hierarchy, and of the role of the legal system in perpetuating it, it is no wonder Finch instructs his daughter: "Bob Ewell fell on his knife!"
Finch's sense of social hierarchy appears most strongly, however, in the defense he presents in the rape trial of Tom Robinson. In his closing argument, Finch seeks to persuade the jury that the real guilty party in the courtroom is not Robinson, but Mayella Ewell, the alleged victim. His defense consists in a steady and heartless attack on the victim. He makes clear that the Ewells are "white trash," that they are pitiable when they are not drunk and downright mean, that violence and abuse are part of their everyday life, that Mayella broke the Southern code by desiring physical affection from a black man. He hopes to convince the jury that the Ewells rank below upstanding, hardworking blacks like Tom Robinson, and that it would be a shame to believe a Ewell instead of accepting Tom's story.
This defense should deeply trouble those who see Finch as some sort of liberal hero who runs great risks to challenge the racism of the South. Sure, there is some challenge here to racial hierarchy, but it consists in the attempt to substitute a different prejudice for racial prejudice. "Some people are below the level of civilization," Finch seems to be saying, "and those people do not deserve to be protected in the same way other whites do. In fact, they should not even be preferred to blacks!" Mayella broke the code of good, southern, white behavior -- and in doing so she has forfeited her right to be given the benefit of the doubt in this case.
So Finch's sense of justice is structured by a powerful sense of hierarchy. While he talks about the legal system being the one place in America where everyone is treated equally, all he ultimately seems to mean is that those who work hard and do not challenge the basic structure of society should be treated equally in court. The Ewells do not work hard and they are "uppity" -- they are rude, they do not know how to treat respectable people (like Judge Taylor and Finch himself), they are disrespectful of society's rules and society's leaders. Tom Robinson works hard, keeps his eyes lowered, and tries to be helpful (even subservient) to "white folks." Tom Robinson accepts the structure of society and shows the proper respect for "his betters." The Ewells don't.
Apply a system that treats people equally to a society in which people are unequal, and the inequality is reproduced. Far from challenging the inequality of southern society, Finch seems more bent on ridding that society of its undesirable elements while preserving the existing status hierarchy.
What does this tell us about professionalism? Is Finch a model? If so, of what?
Monday, November 22, 2010
Ethics, Morals, and Professionalism
I have been writing about the so-called tenets of the legal profession listed as the clue to the meaning of professionalism in Rule 3 of the Vermont MCLE Rules. My theme has been that the rule provides us precious little guidance on what professionalism is, especially if we cling to the crisp distinction drawn by the Court between professionalism and ethics.
Much more could be said about the tenets laid down in the rule -- and the somewhat different list offered in the Reporter's Note. And I have pointedly not discussed several tenets that may actually have some ascertainable content -- in particular, civility and respect for others (other lawyers, witnesses, parties, clients, and so forth). But I want to step back from this detailed look at specific tenets to reconsider the assumption behind the tenet-listing exercise.
I want to suggest that the problem may lie with the effort to distinguish good action (professionalism) from ethical action -- as if one can be ethical without being good. If professionalism means more than intelligent business practice, if it involves something deeper than the sort of suits one wears or the language one uses in public, if it entails something beyond good manners, it inevitably infringes upon the moral domain. The distinction the Court tries to fashion is founded on an incredibly narrow understanding of "ethics," though it may be one that is congenial to people who find themselves sometimes "compelled" to engage in behavior that most people find downright wrong (e.g., lying or at least proceeding blithely unconcerned about the truth or falsity of the position being taken, keeping secrets when lives are at stake, causing pain to another human being because doing so has benefits for your client, and so on). Except in the context of "professional ethics" (notice how those terms -- "professional" and "ethics" -- keep coming together), ethics is usually taken to involve something more than adhering to rules narrowly parsed to permit the greatest possible latitude of action. Even the note to the professionalism rule arrives at that insight, for it tells us that "truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity, and fairness." Said another way, truly ethical people display a body of virtues and do not simply abide by rules of conduct.
The Reporter's Note goes on to point out that "people can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code." True, but to proceed to call such people "ethical" is bizarre -- and that is exactly what the distinction drawn between ethics and professionalism seems to suggest. The problem may lie not so much with the definition of professionalism (although the very word is problematic in my view), as with the perverse limitation of the meaning of ethics. The attempt of the professions -- including law -- to carve out a body of rules distinct to their activity and to consider anyone who adheres to those rules "ethical," however common and accepted, is at fault for many things, not least of which is the incredible incivility and inhumanity we see displayed in the behavior of lawyers who would defend their heartless and obnoxious behavior by calling it zealous representation. That attempt also generates the sort of definitional difficulties our Court wrestled with in trying to craft a notion of professionalism different from rule-bound ethics.
The problem is that ethics is bigger than any body of rules, let alone a practice-driven set of rules like those that govern professional conduct. Rules are really nothing more than attempts to draw out the implications of basic principles or fundamental virtues of character in particular situations. Until we re-examine the fundamental presuppositions that shape the topic of ethics, professionalism, and morals, we will be condemned to witness professionals who justify their blameworthy antics by reference to so-called "ethical" rules, rules that virtually encourage those antics by defining them out of the realm of ethics.
Are lawyers who steal from their client trust accounts, or reveal client confidences, or do any of the other things prohibited by the Rules of Professional Conduct unethical? Probably, because most of those acts involve either fundamentally immoral actions (lying, stealing, cheating) or breaches of trust (which, I would contend, are also fundamentally immoral). But notice that I do not draw a distinction between ethics and morals -- a distinction that has crept into discussions of professional conduct and should be rejected. I think that "ethics" and "morals" refer to the same thing -- the basic principles that should guide our conduct, the basic virtues of character that good people possess. Interestingly, when pushed to develop a public statement, those who draft codes of conduct and professionalism rules agree with the identity of ethics and morals -- for they call their codes "rules of professional conduct" not "ethics rules," and they say things like "truly ethical people measure their conduct by basic moral principles."
If ethics is about anything, it is about the virtues of character that define how we should act in the world. Lawyers, like everyone else, should strive to develop those virtues. To the extent that they fail, they can be faulted for being unethical or immoral. It is those virtues that give us principles that can help guide our actions. To the extent that we want to develop a profession known for its morality -- and it seems obvious to me that we should want this -- we should demand that the members of our profession seek to develop the virtues of character of the good person. We should insist that they act on the principles of action that flow from those virtues. Serious failures to abide by those principles, or to display those virtues, should be punished. All failures should be treated as opportunities to examine the virtues and the principles, and it is there that the conversations the Court wants to encourage about professionalism can be most fruitful. But we must give up the tendency -- perhaps particularly common in a profession given to treating all of life's issues analytically -- to draw arbitrary, unjustified, strange, and awkward distinctions between morals, ethics, and professionalism.
Truly professional lawyers are good people, and evince the virtues and seek always to act according to the principles characteristic of good people. Codes of conduct for professionals must be consistent with morals. They do not chart out a separate territory; they merely look at the same territory through the eyes of people whose work creates specific sorts of situations and raises specific sorts of questions. Codes of conduct apply the virtues of character to specific issues that pop up in professional practice. Professionalism is not something apart from, or even distinguishable from, ethics or morals -- it is the same thing. Nor is it apart from, or distinguishable from, good professional conduct -- it is the same thing. The conversation we should have is about what it means to be a good person. And if we are serious about wanting professionals who are "truly ethical people," we must be willing to punish those who refuse to do so by refusing to let them join or continue as members of a truly ethical profession.
Much more could be said about the tenets laid down in the rule -- and the somewhat different list offered in the Reporter's Note. And I have pointedly not discussed several tenets that may actually have some ascertainable content -- in particular, civility and respect for others (other lawyers, witnesses, parties, clients, and so forth). But I want to step back from this detailed look at specific tenets to reconsider the assumption behind the tenet-listing exercise.
I want to suggest that the problem may lie with the effort to distinguish good action (professionalism) from ethical action -- as if one can be ethical without being good. If professionalism means more than intelligent business practice, if it involves something deeper than the sort of suits one wears or the language one uses in public, if it entails something beyond good manners, it inevitably infringes upon the moral domain. The distinction the Court tries to fashion is founded on an incredibly narrow understanding of "ethics," though it may be one that is congenial to people who find themselves sometimes "compelled" to engage in behavior that most people find downright wrong (e.g., lying or at least proceeding blithely unconcerned about the truth or falsity of the position being taken, keeping secrets when lives are at stake, causing pain to another human being because doing so has benefits for your client, and so on). Except in the context of "professional ethics" (notice how those terms -- "professional" and "ethics" -- keep coming together), ethics is usually taken to involve something more than adhering to rules narrowly parsed to permit the greatest possible latitude of action. Even the note to the professionalism rule arrives at that insight, for it tells us that "truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity, and fairness." Said another way, truly ethical people display a body of virtues and do not simply abide by rules of conduct.
The Reporter's Note goes on to point out that "people can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code." True, but to proceed to call such people "ethical" is bizarre -- and that is exactly what the distinction drawn between ethics and professionalism seems to suggest. The problem may lie not so much with the definition of professionalism (although the very word is problematic in my view), as with the perverse limitation of the meaning of ethics. The attempt of the professions -- including law -- to carve out a body of rules distinct to their activity and to consider anyone who adheres to those rules "ethical," however common and accepted, is at fault for many things, not least of which is the incredible incivility and inhumanity we see displayed in the behavior of lawyers who would defend their heartless and obnoxious behavior by calling it zealous representation. That attempt also generates the sort of definitional difficulties our Court wrestled with in trying to craft a notion of professionalism different from rule-bound ethics.
The problem is that ethics is bigger than any body of rules, let alone a practice-driven set of rules like those that govern professional conduct. Rules are really nothing more than attempts to draw out the implications of basic principles or fundamental virtues of character in particular situations. Until we re-examine the fundamental presuppositions that shape the topic of ethics, professionalism, and morals, we will be condemned to witness professionals who justify their blameworthy antics by reference to so-called "ethical" rules, rules that virtually encourage those antics by defining them out of the realm of ethics.
Are lawyers who steal from their client trust accounts, or reveal client confidences, or do any of the other things prohibited by the Rules of Professional Conduct unethical? Probably, because most of those acts involve either fundamentally immoral actions (lying, stealing, cheating) or breaches of trust (which, I would contend, are also fundamentally immoral). But notice that I do not draw a distinction between ethics and morals -- a distinction that has crept into discussions of professional conduct and should be rejected. I think that "ethics" and "morals" refer to the same thing -- the basic principles that should guide our conduct, the basic virtues of character that good people possess. Interestingly, when pushed to develop a public statement, those who draft codes of conduct and professionalism rules agree with the identity of ethics and morals -- for they call their codes "rules of professional conduct" not "ethics rules," and they say things like "truly ethical people measure their conduct by basic moral principles."
If ethics is about anything, it is about the virtues of character that define how we should act in the world. Lawyers, like everyone else, should strive to develop those virtues. To the extent that they fail, they can be faulted for being unethical or immoral. It is those virtues that give us principles that can help guide our actions. To the extent that we want to develop a profession known for its morality -- and it seems obvious to me that we should want this -- we should demand that the members of our profession seek to develop the virtues of character of the good person. We should insist that they act on the principles of action that flow from those virtues. Serious failures to abide by those principles, or to display those virtues, should be punished. All failures should be treated as opportunities to examine the virtues and the principles, and it is there that the conversations the Court wants to encourage about professionalism can be most fruitful. But we must give up the tendency -- perhaps particularly common in a profession given to treating all of life's issues analytically -- to draw arbitrary, unjustified, strange, and awkward distinctions between morals, ethics, and professionalism.
Truly professional lawyers are good people, and evince the virtues and seek always to act according to the principles characteristic of good people. Codes of conduct for professionals must be consistent with morals. They do not chart out a separate territory; they merely look at the same territory through the eyes of people whose work creates specific sorts of situations and raises specific sorts of questions. Codes of conduct apply the virtues of character to specific issues that pop up in professional practice. Professionalism is not something apart from, or even distinguishable from, ethics or morals -- it is the same thing. Nor is it apart from, or distinguishable from, good professional conduct -- it is the same thing. The conversation we should have is about what it means to be a good person. And if we are serious about wanting professionals who are "truly ethical people," we must be willing to punish those who refuse to do so by refusing to let them join or continue as members of a truly ethical profession.
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