Deliberation, Debate, and Democracy in the Academy and Beyond

By Matt Stannard, Department of Communication and Journalism, University of Wyoming
Spring 2006 Faculty Senate Speaker Series Speech, April 18, 2006, Laramie Wyoming

I: Introduction: Deliberation and Debate as the Democratization of Truth

Within the Academy, the value of deliberation, and the importance of broad participation, is a tentatively accepted truth. Outside the Academy, pundits marvel and jeer at our obsession with "inclusion," an obsession they equate (or equivocate) with "political correctness" and "liberal guilt." Within the Academy, students, instructors, and thankfully sometimes even staff, push and politicize deliberation and inclusion. We mostly consider broad debate, public demonstrations, and the airing of collective opinions the mark of a mature and healthy institution. Outside the Academy, pundits shake their heads and warn parents that today’s colleges are hotbeds of radicalism. Our codes of academic freedom, the public pronouncements of our often-beleaguered administrators, our very syllabi, are full of phrases like "open debate," "responsible communication," and "marketplace of ideas." Outside the Academy, these phrases are seen as alternatively quaint and sinister.

But the Academy is not only under attack from "outsiders," and not merely because the post-September 11 world has given the nod to sterile and commodified forms of patriotic communication and safe, symbolic dissent. Both inside and outside college life, the value of discussion is increasingly under attack, under sabotage, sometimes unintentionally, sometimes violently, and the attackers are often not recognizable as such. We cower away from religious fanatics because we know they refuse to entertain the possibility of their incorrectness, but we fail to see our own failure to embrace the possibilities of our own incorrectness. We label other points of view "ideological" from vantage points we assume to be free of ideology, or we excuse our narrow-mindedness by telling ourselves that "ideology is inevitable." Part of this weakening of our commitment to open debate is our recent, seemingly liberating embrace of personal conviction over public deliberation, the self-comfort of personal narrative over the clumsy, awkward, and fallible attempt to forge consensus across the lines of identity and politics. The fetishization of personal conviction is no less threatening to the public forum than violent authoritarianism—both seek to render disagreement impossible, close off deliberation, and take us closer towards eventual, unnatural silence.

The alternative I would offer today is rooted in the communicative ethics of deliberation, and its academic embodiment is the practice of debate—both in competitive and non-competitive formats: debate as rule-based cooperative truth-generation. Deliberative ethics, following the communication theories of Jurgen Habermas, and the ethical theories of Emmanuel Levinas, among others, are ethics concerning how we collectively construct "truth" itself. What I am speaking of might be called the democratization of truth. Such talk is immensely unpopular on both sides of the ideological spectrum.

From one side, there is distrust of "democratization" and its accompanying "mob rule." Immediately, the thought that ontologies can be democratized raises the eyebrows of absolutists everywhere because who, really, would want truth left up to an angry, uninformed mob? The idea that our truth-systems can be democratized sounds suspiciously like relativism, radical subjectivism, and possibly even nihilism.

From another side, there is distrust of the term "truth," the assumption that it’s going to sound problematic no matter whether it has a big T or a little t. The collectivism of "democratized truth" threatens to assert a universality that has been out of fashion among the academic left for some time. After all, Lyotard, Baudrillard, and South Park have all taught us that there are a bunch of little stories, not one Grand Narrative—let alone one which asserts Grand Truth.

But both the academic right, with its stuffy, ontological authoritarianism, and the academic left, obsessed with identity politics and microdiscursive revolutions, are barking up the wrong tree where communicative ethics are concerned. This democratic system of thought, which I’ve come to discuss with you today, is grounded not in grand systems or deconstructive criticism, although both extremes are welcome to make their case in a democratic forum. Discursive democracy is, instead, grounded in the most primary of ethical concerns for the people around us. As such, it demands a listening that is wholly unfamiliar to the ideological battles taking place inside of academia, as well as among talking media heads, Clear Channel Communications, Congress, or campus demonstrations full of pie-throwing and shout-downs. What Habermas and others have in mind is a kind of communication where each affected person becomes a participant and co-creator of conclusions relevant to their lives; a communicative version of Marx’s dictum: from each according to ability, to each according to need.

Discursive democracy is both a way of thinking about problems—intellectual and otherwise—and a political rallying-cry that promises to turn ideological blinders into conversational openings. It’s a method of rhetorical and communication analysis, but also a tool for immediate social analysis with the potential to involve people from all walks of life.

I will ultimately conclude that deliberative ethics are a tool of social survival, a check against what Habermas calls the "colonization of the life-world," a condition we may already be in, that risks both small and big apocalypses with every passing day. But on the brighter side, I’ll also say a good deal about communication and ethics, and about how knowing a few basic things about communication has the potential to make us not only faithfully good communicators, but also to make us enjoy the existence of other people. After all, we owe them our very lives.

II: The Inevitable and Constitutive Others: Jurgen Habermas and Emmanuel Levinas on Communication

Communication theory begins with the axiom that other people are both inevitable and constitutive: Inevitable, because our very existence and identities are predicated on the existence of alterity, or other-ness, and constitutive because our personalities, thoughts, and projects are constructed by those other people and things. Because this is a foundational truth of communication theory, and not an unpleasant side-observation, the study of communication has always contained a subversive element that has served as a check against both the imperialism of metaphysics, and the nihilism of skepticism.

According to Lithuanian philosopher Emmanuel Levinas, the original sin of Western philosophy is the assertion that the self is prior to the other, and the extension of that sin is the belief that ontology, the study of being, and metaphysics, the assertion of overarching systemic reality, are prior to our ethical relations with other people. Most traditional thinkers believe that we must first understand the nature of existence before we figure out how to respond to one another. Levinas disagrees. He says that the very formulations of ontologies and metaphysics are ethical acts, designed as responses to our encounters with other people. Hence, the ethical encounter is prior to ontology, and indeed all philosophy. Western philosophy has hitherto placed the self at the starting point: the subject is prior to the object. The "I" established by the Cartesian cogito is the ‘starting point’ for any kind of knowledge of the external world.

But instead, the other is actually prior to the self. Alterity, exteriority, is prior to one's construction of an interior self. Without alterity, we would not know that we exist. We have no sense of touch until we touch something, no sense of sight until we see something, no thoughts until things confront us to be thought on.

Ethically, the priority of the other over the self means that responsibility is inescapable. For Levinas, we're always responding, always responsible. A starving person asks you for food. There are a variety of ways to respond: You can feed that person; you can lecture them on the link between capitalism and poverty; you can lecture them on the importance of personal responsibility; you can lecture them on the Malthusian argument about overpopulation; or you can turn around and walk away from them as they starve to death. But all of these things are responses; it's impossible not to respond. You are linked to the fate of the other by virtue of the fact that the other makes a demand or request of you.

Levinas also believes that most "theories" ultimately fail because they serve as ways of attempting to avoid, rather than appropriately respond to, the ethical responsibility that comes from that basic encounter with the other. For example, utilitarianism means that some people (the minority) might get hurt, but we comfort ourselves by saying "well, within my framework, I still did the right thing." Likewise, deontology might hurt a lot of people, but we comfort ourselves by saying "well, we must do what is right even if people get hurt," etc. The orthodox Marxist reduces human suffering to historical materialism. The capitalist reduces it to analytic economic terms and an atomistic conception of personal freedom. The theologian reduces it to God's will and (perhaps) some kind of grand scheme of theodicy. And so on. All of these things are done with the sincere desire to "understand" the other, but they end up reducing the other-ness of the other to a comprehensive catalogue of a system. However inevitable or sometimes useful it may be, all systemic thinking fails at one point or another, because the other is infinite, and eludes totalization.

But the one "universal" condition Levinas does celebrate is that of communication. Shared understanding always fails at some degree, but the attempt to share understanding (and the concomitant attempt to manipulate and persuade) is inevitable. There are distinct ethical differences among various types of communication—for Levinas, a distinction (of which contemporary communication scholars should take note) between "the saying," communication which presupposes an ethical openness to the other, and "the said," which describes the closed, systemic pronouncement that the conversation is over.

For our purposes, deliberative ethics strives to keep the "saying" alive. But it also takes the step of striving to open up the "said" to democratic, participatory construction (which really means stripping the "said" of its authoritative permanence). This is where we enter the world of German philosopher Jurgen Habermas, and also where we learn something we may not have suspected before about skepticism and relativism.

Where Levinas and his family were victims of Nazism, Habermas was pulled into the Hitler Youth. Both thinkers emerged from the nightmare of Nazism deeply concerned about justification: Levinas with the ethical failure of metaphysics, Habermas with the absolute necessity of communicative rationality. If it sounds like these two concerns are in tension with one another, that’s understandable, because we have been taught to see absolutism and relativism as opposites. For Habermas, however, absolutism and relativism are two sides of the same coin: Both represent a failure to live up to the norm of communicative rationality. In the case of absolutism, communication is cut off in favor of authoritative pronouncements. In the case of relativism, rationality is abandoned, the proverbial baby thrown out with the bathwater. The Nazis were absolutists, but this absolutism rested on an abandonment of rational processes. In a world where we cannot arrive at truth through rational consensus, we are left with the will to power as the only possible determinant.

In modern society, that will to power is expressed as non-human, non-intentional forces. Habermas refers to this phenomenon as the "system" (impersonal forces) colonizing the "lifeworld" (shared, personal, intentional understanding between autonomous persons). Social life gradually depends more and more on what we perceive to be impersonal, systemic forces. Truth is imposed from above, disguised as necessity. Human beings lose themselves to the technologization and impersonal administration of a small elite. The chance of injustices being interrupted by disruptive intervention, protest, or revolution melts away.

In response, Habermas proposes a process of attempting to arrive at rational consensus through participatory deliberation. Although he is not the first thinker to put forward a consensus-based theory of truth (others who have done so include Charles Sanders Peirce and Thomas Kuhn), Habermas’s emphasis on the free participation of those affected by the establishment of truths makes his philosophy radically ethical in a manner which compliments Levinas’s deference to the other. "Communicative action" is Habermas’s term for the shared process of giving and criticizing reasons for holding or rejecting particular claims. In this deliberative process, all affected parties should have their say; all should be able to accept the reasons and the consequences of decisions, everyone must be allowed to introduce any argument they desire, and there is an expectation that everyone listen to and consider the arguments of others.

It is important to remember that Habermas is resisting both absolutism and relativism. He does not propose a communicative free-for-all. Rules are important, but it is equally important that the rules be co-created by the participants and not serve to preserve already-existing hierarchies. Methodology, science, and rationality are all important, but they must belong to the people rather than being imposed as a matter of metaphysical necessity from above. Norms, and truth itself, must be created from the ground up. In a dialogue with John Rawls, he writes:

Under the pragmatic presuppositions of an inclusive and noncoercive rational discourse among free and equal participants, everyone is required to take the perspective of everyone else, and thus project herself into the understandings of self and world of all others; from this interlocking of perspectives there emerges an ideally extended we-perspective from which all can test in common whether they wish to make a controversial norm the basis of their shared practice; and this should include mutual criticism of the appropriateness of the languages in terms of which situations and needs are interpreted. In the course of successfully taken abstractions, the core of generalizable interests can then emerge step by step.

As William Rehg writes: "The presumption here is that such cooperation requires the discussants to respect each other as responsible agents whose arguments and objections should be taken seriously."

III: The Academic and Political Project of Democratized Communication

If Habermas is right, and I obviously believe he is, then academics cannot afford to be insulated from the lives of ordinary working people, but must instead co-participate in some kind of empowerment for all, perhaps by facilitating schools, and I would suggest debate programs, as safe deliberation zones, which can in turn inform liberatory politics. Above all, a commitment to deliberative democracy means removing the stigma from disagreement and confrontation, and teaching all participants to be co-creators not only of the substance of debate, but the rulemaking of the conversational process itself. This debating can take place both inside and outside of schools.

A commitment to deliberative democracy means a commitment to privileging the process of deliberation over other processes in shaping political life. In other words, inclusive rather than restrictive voting rights, more candidates on TV and not less, more resources committed to education not fewer, erring on the side of freedom of speech rather than restrictions, and above all, an emphasis on and respect for the conversational process itself as an active, inclusive, organic field of political truth-building. A democratization, in other words, of the building of collective truth.

Sometimes this means conducting deliberative polls or favoring the referendum process. Other times it means making the political process more transparent, such as favoring open-door meetings and the like. Now, many people make pretty good arguments as to the imperfections of these policies. The referendum process can be co-opted, bought out; sometimes even openness is antithetical to transparency, since cynical politicians can take advantage of openness for their own publicity, and sometimes people need to deliberate in private.

But the great thing about deliberation as a commitment is that these criticisms can become part of the overall process of deliberative democracy. In a world where interested parties have the opportunity to speak and debate in good faith, we can criticize the referendum process, or explain why we can’t always have open meetings. We can debate the rules themselves, in other words, debate the process itself.

All of this suggests that, if deliberative ethics are an antidote to both authoritarianism and self-centeredness, we need more: More debate teams, more public discussion, more patient deliberation, more argument, more discourse, and more nurturing and promotion of the material entities that sustain them.

Some of the most articulate criticisms of competitive, switch-side academic debate come from the debate community itself. These criticisms have lately centered on things like the specialized and esoteric practices of debate, the under-representation of minorities in the activity, and the way in which debate practices feed, rather than fight, structures of domination. In other words, internal criticism of academic debate is very much like internal criticisms of the Academy in general: We’re too specialized, we’re too white, and we’re exploited by hegemonic institutions. All of these criticisms are true, and yet, paradoxically, it is our experience in debate, along with our experience in the critical thinking of university education, that teaches us how to articulate these arguments. The deliberative process is self-reflective and at least has the potential to be self-correcting.

I wish to focus on one such criticism: the argument that the discursive practices of academic debate are reappropriated in the service of American hegemony. This is the focus of an article by Darren Hicks and Ron Greene in last year’s Cultural Studies. It is one of the most comprehensive critical treatments of debating ever to appear in a non-specialized journal, and it is written from the perspective of two former debaters and debate coaches who are now leading scholars in the field of rhetoric. Hicks and Greene argue that switch-side debate, the practice of making students advocate views they do not believe, creates "exceptional subjects," and separates speech from personal agency and conviction. This separation from conviction is crucial for spreading a liberal-capitalist idea of "freedom" around the world, since "the ability to distance one’s judgment from one’s first order convictions secures the knowledge class’s professionalization." They conclude:

debating both sides helps liberalism to produce a governing field between a person's first order convictions and his/her commitment to the process norms of debate, discussion and persuasion. This field is then managed in and through the alteration of different communicative practices. The production and management of this field of governance allows liberalism to trade in cultural technologies in the global cosmopolitan marketplace at the same time as it creates a field of intervention to transform and change the world one subject (regime) at a time.

The main strength of Hicks and Greene's argument is their cooptation trope. Clearly, the "civic engagement" of academic debate can be, and is, exploited in the service of soft-power imperialism. Indeed, this is not merely done through the psychological conditioning of the student elite, but is often based on a literal, material connection, as when The Center for Strategic and International Studies, a foreign policy think-tank with direct ties to the Central Intelligence Agency, directly recruits college debaters.

If it is indeed true that debate inevitably produces other-oriented deliberative discourse at the expense of students' confidence in their first-order convictions, this would indeed be a trade-off worth criticizing. In all fairness, Hicks and Greene do not overclaim their critique, and they take care to acknowledge the important ethical and cognitive virtues of deliberative debating. When represented as anything other than a political-ethical concern, however, Hicks and Greene's critique has several problems: First, as my colleague J.P. Lacy recently pointed out, it seems a tremendous causal (or even rhetorical) stretch to go from "debating both sides of an issue creates civic responsibility essential to liberal democracy" to "this civic responsibility upholds the worst forms of American exceptionalism."

Second, Hicks and Greene do not make any comparison of the potentially bad power of debate to any alternative. Their implied alternative, however, is a form of forensic speech that privileges personal conviction. The idea that students should be able to preserve their personal convictions at all costs seems far more immediately tyrannical, far more immediately damaging to either liberal or participatory democracy, than the ritualized requirements that students occasionally take the opposite side of what they believe.

Third, as I have suggested and will continue to suggest, while a debate project requiring participants to understand and often "speak for" opposing points of view may carry a great deal of liberal baggage, it is at its core a project more ethically deliberative than institutionally liberal. Where Hicks and Greene see debate producing "the liberal citizen-subject," I see debate at least having the potential to produce "the deliberative human being." The fact that some academic debaters are recruited by the CSIS and the CIA does not undermine this thesis. Absent healthy debate programs, these think-tanks and government agencies would still recruit what they saw as the best and brightest students. And absent a debate community that rewards anti-institutional political rhetoric as much as liberal rhetoric, those students would have little-to-no chance of being exposed to truly oppositional ideas. Moreover, if we allow ourselves to believe that it is "culturally imperialist" to help other peoples build institutions of debate and deliberation, we not only ignore living political struggles that occur in every culture, but we fall victim to a dangerous ethnocentrism in holding that "they do not value deliberation like we do." If the argument is that our participation in fostering debate communities abroad greases the wheels of globalization, the correct response, in debate terminology, is that such globalization is non-unique, inevitable, and there is only a risk that collaborating across cultures in public debate and deliberation will foster resistance to domination—just as debate accomplishes wherever it goes. Indeed, Andy Wallace, in a recent article, suggests that Islamic fundamentalism is a byproduct of the colonization of the lifeworld of the Middle East; if this is true, then one solution would be to foster cross-cultural deliberation among people on both sides of the cultural divide willing to question their own preconceptions of the social good. Hicks and Greene might be correct insofar as elites in various cultures can either forbid or reappropriate deliberation, but for those outside of that institutional power, democratic discussion would have a positively subversive effect.

We can read such criticisms in two ways. The first way is as a warning: That we ought to remain cautious of how academic debate will be represented and deployed outside of the academy, in the ruthless political realm, by those who use it to dodge truthful assertions, by underrepresented groups, of instances of material injustice. In this sense, the fear is one of a "legalistic" evasion of substantive injustice by those privileging procedure over substance, a trained style over the primordial truth of marginalized groups.

I prefer that interpretation to the second one: That the switch-side, research-driven "game" of debate is politically bankrupt and should give way to several simultaneous zones of speech activism, where speakers can and should only fight for their own beliefs. As Gordon Mitchell of the University of Pittsburgh has pointed out, such balkanized speech will break down into several enclaves of speaking, each with its own political criteria for entry. In such a collection of impassable and unpermeable communities, those power relations, those material power entities, that evade political speech will remain unaccountable, will be given a "free pass" by the speech community, who will be so wrapped up in their own micropolitics, or so busy preaching to themselves and their choirs, that they will never understand or confront the rhetorical tropes used to mobilize both resources and true believers in the service of continued material domination. Habermas’s defense of the unfinished Enlightenment is my defense of academic debate: Don’t throw the baby out with the bathwater. Instead, seek to expand this method of deliberation to those who will use it to liberate themselves, confront power, and create ethical, nonviolent patterns of problem resolution. If capitalism corrupts debate, well, then I say we save debate.

Which brings me to another important point, which I think we can draw from Hicks and Greene’s criticism: I would submit that the biggest danger we face is not in underestimating the power of debate. The danger lies in overestimating it, precisely because dictatorial tendencies of all stripes have never hesitated to shut down debate and crush dissent in the name of expediency. Academics, and particularly communication scholars, have a hard time understanding brutal, material power. We tend to think reason will prevail—or that if it doesn’t, we can explain its failure discursively. This blindness concerning materiality is precisely why deliberative politics must include the voices of the materially disadvantaged. It is why the "perspective of the oppressed" is not only morally necessary, but epistemologically necessary. Within Habermas’s communicative ethics is found both the classic Rawlsian test of how policies and arrangements affect the least advantaged members of society, and the Marxian imperative for emancipation from the artificial and enforced scarcity and silence of economics. This is vital to making what we do relevant—because even if democratic legitimacy depends on discursive justification, such justification occurs in a "dirty" material world, the "excrement" of which Marx wrote as a metaphor for the day-to-day material challenges of ordinary people. The aggregate of those material challenges constitutes the very conditions of humanity itself, and awareness of those conditions in their totality requires a commitment to deliberation in all levels of the social world.

The complexity and interdependence of human society, combined with the control of political decisionmaking—and political conversation itself—in the hands of fewer and fewer technological "experts," the gradual exhaustion of material resources and the organized circumvention of newer and more innovative resource development, places humanity, and perhaps all life on earth, in a precarious position. Where we need creativity and openness, we find rigid and closed non-solutions. Where we need masses of people to make concerned investments in their future, we find (understandable) alienation and even open hostility to political processes. The dominant classes manipulate ontology to their advantage: When humanity seeks meaning, the powerful offer up metaphysical hierarchies; when concerned masses come close to exposing the structural roots of systemic oppression, the powerful switch gears and promote localized, relativistic micronarratives that discourage different groups from finding common, perhaps "universal" interests.

Apocalyptic scenarios are themselves rhetorical tools, but that doesn’t mean they are bereft of material justification. The "flash-boom" of apocalyptic rhetoric isn’t out of the question, but it is also no less threatening merely as a metaphor for the slow death of humanity (and all living beings) through environmental degradation, the irradiation of the planet, or the descent into political and ethical barbarism. Indeed, these slow, deliberate scenarios ring more true than the flashpoint of quick Armageddon, but in the end the "fire or ice" question is moot, because the answers to those looming threats are still the same: The complexities of threats to our collective well-being require unifying perspectives based on diverse viewpoints, in the same way that the survival of ecosystems is dependent upon biological diversity. In Habermas’s language, we must fight the colonization of the lifeworld in order to survive at all, let alone to survive in a life with meaning. While certainly not the only way, the willingness to facilitate organized democratic deliberation, including encouraging participants to articulate views with which they may personally disagree, is one way to resist this colonization.
WORKS CITED

Abdel-Nour, Farid. "Farewell to Justification: Habermas, Human Rights, and Universalist Morality." Philosophy and Social Criticism 30 (1): 73-96, 2004.

Edgar, Andrew. The Philosophy of Habermas. Montreal: McGill-Queens University Press, 2005.

Gimmler, Antje. "The Discourse Ethics of Jurgen Habermas." No Date. 5 October, 2005. http://caae.phil.cmu.edu/cavalier/Forum/meta/background/agimmler.html.

Greene, Ronald Walter and Darrin Hicks. "Lost convictions: Debating both sides and the ethical self-fashioning of liberal citizens." Cultural Studies 19(1):100-126, 2005.

Habermas, Jurgen. "Reconciliation through the Public Use of Reason: Remarks on John Rawls's Political Liberalism." Journal of Philosophy, March, 1995: 117-8.

Lacy, Jean-Paul. "Re: Re-Open The Debate About Switch-Side Debate," E-debate list serve, 13 April, 2006. 15 April, 2006. http://www.ndtceda.com/archives/200604/0349.html.

Levinas, Emmanuel, Totality and Infinity: An Essay on Exteriority. Pittsburgh: Duquesne University Press, 1969.

Mitchell, Gordon. "Beyond the Daily Me: Argumentation in an Age of Enclave Deliberation" (co-authored with Takeshi Suzuki). In Takeshi Suzuki, Yoshiro Yano & Takayuki Kato, ed., Argumentation and Social Cognition (Tokyo, Japan Debate Association, 2004): 160-166.

Moyn, Samuel. Origins of the Other: Emmanuel Levinas Between Revelation and Ethics. Ithaca: Cornell University Press, 2005.

Rehg, William. INSIGHT AND SOLIDARITY: THE DISCOURSE ETHICS OF JURGEN HABERMAS. Berkeley: University of California Press, 1994.

"Center for Strategic and International Studies." Source Watch. No Date. 10 January, 2006. http://www.sourcewatch.org/index.php?title=Center_for_Strategic_and_International_Studies.

Wallace, Andy. "Reason, Society and Religion: Reflections on 11 September from a Habermasian Perspective." Philosophy and Social Criticism 29(5): 491-516, 2003.

Final Oral Presentations!

Please email me back with your preference on giving your final oral presentation: Next Thursday (the last day of class) or Tuesday of finals week from 10:15-12:15.

The requirements for the second oral presentation are the same as the first. You need a model or theory, you need an artifact. The artifact has to be related to legal communication. You need to use the model or theory to teach us something about the success or failure of the artifact. Bonus if you also use the artifact to teach us something about the usefulness of the model or theory. Finally, you should tell us what future research may be desirable based on your own conclusions.

stannard

Abortion Rhetoric

Remember that the main purpose of this unit is not to elicit people's personal or political opinions about abortion (although those are important), but instead to pay attention to the way various sides in the abortion debate construct their arguments, and frame their metaphysics of life.

For next Thursday, write your response papers on one of the following questions:

1. Identify one or more similarities between contemporary pro-life rhetoric and the rhetoric of the Abolitionist (anti-slavery) movement of the 19th century.

2. Following Habermas, who are the affected participants in the abortion debate? How can the debate be framed to reflect the views of all involved?

3. Trace the rhetorical construction of "privacy" in Roe v. Wade and subsequent court decisions.

4. What would be a morally consistent pro-life rhetoric?

All of these responses are going to require considerable outside research and the citation of sources--not merely your own speculation and opinion.

Finally, because some people in the class seem interested in this issue, here are some links to pro-life feminism resources:

http://serendip.brynmawr.edu/sci_cult/courses/knowbody/f04/web2/cpomeroy.html

http://www.fnsa.org/

http://www.feministsforlife.org/FAQ/index.htm

Response Papers: Topics and Due Dates

The third response paper is now due on Thursday, March 23, by 5:00 PM. We will not have class that Thursday, because I will be in Chicago.

IF you attended the public debate on the proposed U.S. invasion of Iran, you may write on the following:

Which side won the debate, and why do you think they won?

IF you did not attend the public debate, or do not wish to write about it, you may write on the following:

Briefly summarize Jurgen Habermas's theory of communicative ethics. Is it feasible to enact those ethics in the American legal or political system?

Have a good Spring Break!

Rhetorical Analysis Guidelines

Please let me know what legal artifacts (communication events, speech acts, texts) you will be using for your analyses.

Your five-minute speeches should briefly explain both the significance of your artifact and the model or theory you will be using. Then, simply explain the conclusions you've reached about that artifact using the theory or model. This is more a briefing than a detailed lecture; you have a limited amount of time, so you will have to do a lot of summarizing. But your ability to synthesize the ideas and demonstrate an understanding of how communication theories explain rhetorical events will be the main criteria for your grade.

Some basic quiestions you may want to ask can be found here. Your particular model or theory will help explain those questions.

Here are several good examp,es of rhetorical analysis--although yours, obviously has to be based on a legal artifact:

http://www.acjournal.org/holdings/vol2/Iss1/essays/walker.htm
http://www.uttyler.edu/meidenmuller/commtheory/oralreportme.htm
http://www.siu.edu/~siupress/titles/f00_titles/jensen_alcoholics.htm
http://www.acjournal.org/holdings/vol2/Iss2/articles/brendacooper/index.html
http://www.acjournal.org/holdings/vol3/Iss2/articles/cognition.html

Sample outline:

Thesis: Johnnie Cochrane's defense summation in the O.J. Simpson trial, when analyzed through a model of anti-institutional "critical legal studies" discourse, played upon jurors' distrust of the system to encourage them to find reasonable doubt.

I. Background of the O.J. trial.
(give a very brief historical summary)
Main message: The rhetorical significance of the O.J. trial was that so many people thought it was an open and shut case. Presumably, it would take a solid persuasive event on behalf of the defense to score an aquittal.

II. Anti-institutional and critical legal discourse.
(explain critical legal theory and anti-institutional discourse)
Main message: Critical legal discourse places questions in the minds of its audience as to the fairness of the law as an institution. However, in order for this to work in the courtroom, advocates need to utilize concrete examples of the system's failure in a particular trial.

III. Cochrane's summation.
(detail ways in which Cochrane's summation reflects the various points of critical legal theory)
Main message: By emphasizing prosecutorial mishaps and the dishonesty of authority figures like cops, prosecutors, and lab analysts, Cochrane took advantage of the public's lack of confidence in these authorities.

IV. Conclusion: What else should we analyze about the O.J. trial? (give some suggestions)

Notes on Pierre Schlag and Normativity

Schlag's critique of the objectivity of law takes the form of a critique of "normativity." What is "normative legal thought?" It is when legal scholars, advocates and activists take a position on what the law ought to be, how it should be interpreted, etc.

One of the main problems with normative legal thought, according to Schlag, is that normative thinking is NAIVE. Advocates are unaware, or at least seem to be unaware, of how power works, whose hands are on the real levers of power, who essentially "owns" the law. Because of this, legal scholars, advocates, and activists constantly say "this should be done," "there ought to be a law that says this," "the law should be interpreted in this way..." In a larger sense, they say "we need more justice..." etc. They become SELF-SATISFIED with their rhetoric about the way things ought to be, and this self-satisfaction obscures the real reasons things are the way they are--such as the way in which corporate and capitalist interests control the political and legal process, the way in which implicit and entrenched racism, sexism, classism, etc., overwhelms the supposed solvency of normative legal advocacy.

Schlag's "Clerks in the Maze" examines the way in which law seeks to preserve itself through its own authority. These methods of self-preservation are essentially rhetorical, and thus, Schlag's criticism serves as a model for rhetorical criticism we can use in this class. For Schlag, much legal discourse is a denial of the inherently violent nature of the law. Recall that last week we discussed how the law is predicated upon the ability of the state to do violence. Schlag even suggests this violence goes even deeper than the coercive power of the state. "Judges," he writes, "must destroy the worlds of meaning that others have created." Because the law is essentially coercive, and often arbitrary and laden with unacknowledged power hierarchies, part of the purpose of legal rhetoric is "making the law feel really good" about itself.

Schlag outlines two legitimizing rhetorical strategies, both of which can serve as models of rhetorical criticism. First, "Constrain and Control." This strategy paints PARTS of the law, such as some parts of the judiciary, as violent and potentially out of control. It holds up models of "judicial restraint" as a remedy for this. It idealizes procedural regularity, consistency, etc. In doing so, it not only stifles creativity, but also covers up the violence found in that very consistency and regularity. One good application of this criticism to legal discourse would be a critique of various judicial opinions concerning Native Americans: the Plenary Power doctrine, Indian citizenship, etc.

Second, "Justify and Redeem." This is where you find legal arguments emphasizing goodness and rightness. It is especially found in advocacy and decisions that purport to solve for, bring redemption for, past injustices. It is manifest in the law's "grand demonstrations of profound moral concern." It is also often accompanied by what Schlag calls "hand-wringing," the assumption that redemption is found merely in FEELING BAD about past injustices. One could apply this critical model to a lot of legal advocacy about civil rights and other antidotes to systemic oppression.

Schlag's "Normative and Nowhere to Go" is a delightful and provocative article. Read the footnotes--they are hilarious. There's a lot at work in this article. I just want to emphasize Schlag's ridicule of the normative mindset that we ought to always be "doing something." He says that the question "What should we do" is "an interruption posing as an origin." I'd like to hear what others in the class think this quote means before I explain my understanding of it in class on Thursday.

Schlag's conclusion in this article is that when law professors train law students to fight for good things--justice, equality, etc.--without paying attention to how institutional (and perhaps non-institutional) power works in society, these professors are essentially training their students to be "Atticus Finch" in a world where Finch is unreal and impossible. Atticus Finch, of course, is the famous main character in Harper Lee's To Kill a Mockingbird, a morally upright, progressive hero surrounded by evil and ignorant men.

Schlag says that the law is not Atticus Finch, but rather a glorified version of the insurance industry. Insurance adjusters might have some cursory knowledge of philosophical and moral ideals (eg, "responsibility") but they really can't change the way the insurance industry works, nor do they really want to. The machinery keeps running the same way it always does, because those who truly control that machinery don't want it to work any other way. At best, the most idealistic practitioners in the machine merely make the machine look good, rather than affecting any genuine reforms. Schlag writes:

For our students, this role-confusion is unlikely to be very funny. It will get even less so upon their graduation--when they learn that Atticus Finch has been written out of the script. For us, of course, it is a pleasant fantasy to think we are teaching Atticus Finch. When the fantasy is over, it becomes one hell of a category mistake. And in the rude transition from the one to the other, Atticus Finch can quickly turn into Dan Quayle. In fact, if you train your students to become Atticus Finch, they will likely end up as Dan Quayle-- cognitively defenseless against the regimenting and monitoring practices of bureaucratic institutions. Atticus Finch, as admirable as he may be, has none of the cognitive or critical resources necessary to understand the duplicities of the bureaucratic networks within which we operate. Apart from the fantasies of the legal academy, there is no longer a place in America for a lawyer like Atticus Finch. There is nothing for him to do here--nothing he can do. He is a moral character in a world where the role of moral thought has become at best highly ambivalent, a normative thinker in a world where normative legal thought is already largely the bureaucratic logic of institutions.

Certainly a bleak picture, but one we must consider in our quest to understand, criticize, defend, and even deconstruct the themes of legal rhetoric.