Markel on Civility
posted by Dave Hoffman
Over at Prawfs, Dan Markel has a interesting post up on the ethics (and civility) of scholarship. Here’s a taste:
Anytime I’m tempted to write out of rage that someone’s argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article “seem mistaken or inaccurate” for the following reasons… This helps focus on, what Michael Walzer wisely described, the task of “getting the arguments right.” It’s not about making anyone look foolish or wicked.
To which Ethan Leib responds, in the comments:
Oh, I don’t know. This all seems a bit prissy. What great theorist hasn’t taken some liberties with broadstroking a school of thought? Doesn’t this ethic of careful citation and naming names (isn’t that a lot like dropping names?) just give the bluebook monkeys more to bother us about?
This emerging debate reminds me a bit of Brian Leiter’s incivility discussion three years back. I think Dan’s ethical principles are grappling with one of the central problems of being a scholar, which cycles to and from prominence in academic circles.
Surely, Dan’s goals are good ones. But, I think, they tradeoff against another goal we all want, which is to get our ideas across clearly. It is hard to write well. It gets harder when your writing is stripped of tone, weighted down by picayune citation, and qualified up the wazoo by a five-, seven-, or nine-level journal editing process. I’m sure Dan doesn’t mean that we should sacrifice clarity for civility, but I think the tradeoff is usually present.
Dan’s other claim is, essentially, that we should never think that scholars we disagree with are evil-minded. This, too, is a hard problem. Scholarship is a grind – often rewarding, always challenging, usually lonely – but always hard work. For me, imagining myself in a battle against wrongdoers (or, better, wrong-thinkers) is the best way to motivate to get out of bed in the morning and write. Cf. Why I Write (Prawfs ’05).
More significantly, the unique conceit of legal scholarship (among the humanities) is that it directly affects the lives of millions of people. Since I intend for my work to better those millions of lives, and I think my arguments are correct, I have to assume that people I disagree with on fundamental issues either are wrong about the results of their policies in the real world, don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), or are simply nasty folks. [Update, I've reordered these possibilities to reflect my view of their likelihood, with a heavy weighting toward the first] In any event, civility and collegiality seem less important to me than being satisfied, in my mind, that I’ve gotten the arguments right and demonstrated to the reader how I arrived at them. Proper and generous citation will generally out foolishness. As Ethan points out, “It’s an adversary process out there.”
December 28, 2006 at 9:42 am
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Responses (9)
Orin Kerr - December 28, 2006 at 10:35 am
Dave writes:
“I have to assume that people I disagree with on fundamental issues either don’t care about their fellow citizens (more precisely, care about ideas as intellectual games), are wrong about the results of their policies in the real world, or are simply nasty folks.”
Dave, do you mean this seriously? It strikes me as rather disturbing. I gather it’s common to assume that if you disagree with someone, you think they are wrong about the results of their policies in the real world. But do you actually think that the source of intellectual disagreement might be the result of your adversary being “simply nasty folks” who “don’t care about their fellow citizens”?
dave - December 28, 2006 at 10:41 am
Why is it disturbing? Surely, much of the time it is safe to assume that legal disputes are really empirical ones: we disagree about what will happen in the world. But, in very rare cases, I do think that scholars are simply indifferent to the the pernicious real-world effects of their ideas. They think of themselves as good people, who do intellectual work that is engaging. But, they do evil things. Think, for example, of the eugenicists.
The “nasty folks” part of the tripology is mostly rhetorical dressing.
Orin Kerr - December 28, 2006 at 10:57 am
Dave,
Can you give examples of who these horrible people are, and the positions they take that are “evil”? Given that most legal scholarship expresses disagreements with other legal scholars, I am particularly interested to know who the evil law professors are.
dave - December 28, 2006 at 11:01 am
Orin, no thanks, in this forum. You are welcome to read what I’ve written, where I say (better than I can here) exactly where and why I disagree with specific scholars. (And, I think you are missing the point of my comment, which is that almost all scholarly disagreements that I’ve engaged in are, at the bottom, empirical.)
Scott Moss - December 28, 2006 at 12:56 pm
I’d agree with Dave’s comment to the extent that I understand it correctly (and I’ll paraphrase to reflect my understanding):
(1) If I’m disagreeing with someone I’ll ordinarily be civil and assume good intentions; but
(2) in some instances, the person with whom I’m disagreeing really needs to be condemned in the strongest possible terms.
I’d add that to me, category (2) is appropriate mainly for what I see as disingenuousness and dishonest arguments. Let me give two specifics as to (2):
- As Donohue & Wolfers have shown, certains of the recent studies purporting to show that the death penalty deters are simply fraudulent.
- I think those in the Office of Legal Counsel who have defended certain blatantly illegal Executive Branch measures (e.g., torture or warrantless wiretapping) are not writing good-faith legal analyses and simply don’t care about the individual rights they’re trampling.
I think it’s important for the goal of civility to be un-civil in the most egregious cases. What I mean by that is this: if I’m civil 95% of the time but harsh/blunt in rare circumstances, then it’s clear that when I’m being civil, I’m not just using polite tones to mask disdain/disgust. The fact that I’m harsh/blunt to the 5% means that I really am expressing respect for the other 95%.
In contrast, if you’re polite all the time, then any polite criticism may be a toned-down attack reflecting hidden disdain/disgust.
Orin Kerr - December 28, 2006 at 1:46 pm
Scott,
I suppose my concern is that, at least in my experience, people tend to be unusually willing to find bad faith when they disagree with the political implications of an argument. So if someone makes an argument that we wish were right but seems pretty clearly wrong, we tend to be quite forgiving; it’s an innocent mistake, and he means well. On the other hand, when someone makes an argument that we strongly want to be wrong and seems pretty clearly wrong, we tend to see bad faith; the mistake seems out of bounds and the person who makes it seems worthy of serious condemnation. If this dynamic is real, then we may be too willing to let political disagreements morph into moral arguments. My fear is that this dynamics tends to narrow the range of acceptable arguments, crowding out some arguments that are quite fair on the merits but may seem politically uncomfortable.
I’m not saying that’s the case with your examples, but that’s my concern.
Haninah - December 28, 2006 at 5:40 pm
Orin Kerr writes: “we may be too willing to let political disagreements morph into moral arguments.”
That order seems to me backwards. Shouldn’t moral arguments be the *roots* of our political disagreements? What I mean by this is not that we should presume that anyone who disagrees with us on politics is our adversary on moral issues, but rather that we should be willing and able to talk about it when it does turn out that our political disagreements are rooted in moral disagreements, in disagreements over ultimate values.
I’m not a lawyer (much less a legal scholar) myself, so perhaps legal scholarship is a much more empirical field than what I’ve described. But the previous commenters chose to speak of *politics,* rather than jurisprudence, and about politics I do believe that what I have said above is true.
If Max Weber, read in the most simple-minded way, were right, it would be possible to systematically strip away all the empirical layers of political (read: policy) debates with the help of social and natural science and look straight to the underlying normative disagreements at the bottom (assuming, of course, that we find any left once we’ve resolved all empirical questions). Of course, that’s not the case, and even in politics the empirical issues can get extremely hairy and intractible (otherwise, people like me would be out of a job). But even in this imperfect world, I believe that seeing the moral debates which underly our political debates is a form of clarity, not of weakness.
Allow me to clarify: of course by saying “this is a moral issue” we have not resolved the debate – that much should be obvious. Saying that this is a moral issue for me does not in any way “prove” that my moral stand is “right.” I am advocating a an examination of the moral disagreements manifested in political disagreements which is to be used as a microscope, not a cudgel.
Dan Markel - December 28, 2006 at 6:21 pm
Wow, didn’t realize my post would generate some of this commentary. Let me add something here that I noted on the Prawfs discussion. Dave appears to share the view that “it’s an adversary system out there” in the world of scholarship. I find this claim both surprising that it’s made and disappointing if it’s at all true. It is true that knowledge accumulates by increment and some degree of back and forth, but I don’t view my scholarly interlocutors as adversaries, rather as possible educators who can teach me and others something.
To the extent that one is identified as a scholar qua adversary, one is undermining the currency of credibility that normally attaches to one’s scholarship. I don’t think Dave meant this, since he wanted to ensure he was on board with proper and generous citation to out foolishness, but the danger of the adversary model is that when one thinks of oneself as an adversary (as opposed to say a judge within the adversarial model) one is tempted to forgo the full and generous citation that allows one to ensure no one is playing fast and loose with the opposing side. So Dave, I wonder if you meant invoking the adversary system in the same way I read Ethan to be invoking it. And with respect to what you and Ethan wrote about regarding the travails of writing civilly at the cost of clarity (or in Ethan’s case, authenticity), I would deny the existence of any real tradeoff between clarity and civility or between authenticity and civility. I think all are compatible.
Orin Kerr - December 28, 2006 at 6:54 pm
Haninah,
My apologies for being unclear. My point is that we can be too quick to take a good faith disagreement about a message (“Does the Constitution require X?”) and recast it as a statement about the acceptability of the messenger (“Professor Y argues X; I think he is wrong and X is appalling, and therefore Professor Y is evil.”).
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