Liberty, Prudence, Imperfection, and Law

“Debate and the Need for Empathy,” By Bruce Frohnen

“Belgrade-Moot-Court” by Comparativist1 – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

When he was an undergraduate, Woodrow Wilson withdrew from a debate competition because, when he drew lots to see what side of the issue he would have to argue, he found himself on what he deemed the wrong side. Wilson could not argue in good faith that universal suffrage would be good for the country, and so he refused to support that position in a public debate. His father applauded the decision, and his attitude—that one’s personal convictions are too precious to be sullied by taking a hypothetical position opposing them—has been victorious in American public life. But it has been deeply damaging to Americans’ capacity to analyze problems, to reason together, and to consider the grounds for their opinions and desires.

Americans find it increasingly difficult to consider the positions of their political opponents. “I disagree” has been replaced too often with “you are a bigot” or “your beliefs show your hostility toward what is true and good.” Such an observation may be considered the beginnings of yet another call for false “moderation,” in which both sides of a debate are told, in essence, to “split the difference” in the name of peace. Generally, this call to moderation is issued by liberals pressing conservatives to accept the fundamental outlines and presuppositions of a liberal program in exchange for some minor, temporary limitation on its extent (e.g., letting teeny-tiny businesses have a waiver—for now—from various regulations that are a bad idea for everyone). More to the point, this kind of moderation is about compromise, which may be a good thing under certain circumstances, but does nothing in and of itself to promote mutual understanding or determine whether a given policy is in fact a good idea. And why is mutual understanding such a good thing? Because it makes civil discourse possible, lets us reason together, and helps each side reason better about what the other side wants and how to counter their real arguments. The end result will not always be, and should not always be, compromise. But the issues will be clearer on both sides, whatever the results.

One of the few places where genuine debate is supposed to take place today is law school. Students engage in “moot court” competitions in which they may be asked to argue either side of contentious but hypothetical or “moot” legal cases. In class the (inaccurately dubbed) Socratic method is intended to allow professors to press students to look at the reasoning of various courts and to present arguments from both sides about particular cases and controversies. But these activities no longer take place in the context of a culture in which debating skills are valued for their own sake. Very few, even among law students, have any experience in debating societies. Even fewer look forward to debate for its own sake.

Interest in debates today is seen as worthy of mere sophists—those who will argue either side of an issue for money and take pride in their ability to make the weaker argument seem to be the stronger. This is seen as dishonest and indicative of a lack of personal conviction. The criticism goes back to Socrates’s own castigation of the Sophists in ancient Greece. And one can see the point of a general distaste in society for those who do not care whether they are arguing for the truth, for a falsehood, or for whatever might be convenient in a world in which there is no truth. But such a position is fundamentally at odds with the purpose of rhetoric and the mental skills debate is meant to help develop.

Rhetoric, too often defined as simply the art of persuasion, in fact encompasses the elements of good writing and speech themselves, as well as knowledge of what speaks to our nature as persons and members of various communities. But my concern, here, is not with setting forth the particulars of the high art of rhetoric, properly understood; it is with our inability to grasp the very existence of worthwhile arguments in opposition to our own, let alone engage them, as well as with the manner in which this inability, or unwillingness, has corrupted education and public life. In law school, for example, we find that the Socratic method is in increasing disrepute because it is seen as too demanding and, especially, too hard on the feelings and self-esteem of students. A law class taught according to the Socratic method properly assumes the students have read, studied, and come to understand the readings. There may remain questions and problems, but only if the students have put in the time and effort to master the basics of the materials can the professor ask them, not just to recite the facts of a case, but to explain how a particular argument works, how a different set of facts might change that argument, and how one might counter it in court.

Contemporary “student-centered” legal education, like all education, intentionally limits the ability of professors to assume knowledge, effort, and the capacity of empathy for their opponents on the part of students. It also discourages them from challenging students on their preparation and on their personal beliefs. In practice, more and more professors eschew the Socratic method for lectures that have been reduced to “PowerPoint” presentations. Whatever the merits of this practice, it does not center on engaging students in analysis and confrontation with various arguments, or on formulation of counter-arguments. The result is encouragement of an already dangerous trend, according to which students see the law and factual controversies as mere material for building persuasive arguments to support their clients and/or their prejudices.

And how, one may ask, is this a problem? Is that not what lawyers “do”—manipulate rules and facts for their clients’ benefit? For several decades, now, lawyers have chosen to see themselves as Captain Kirk facing the Kobayashi Maru test. Kirk, for those not burdened with excessive knowledge of Star Trek trivia, was faced with a no-win (Kobayashi Maru) scenario while in school in which his ship was doomed to destruction. Unwilling to accept such an unjust result, he reprogrammed the test simulator so that he could “win.” Lawyers today, and especially legal academics, persistently claim that the law and legal system as a whole are unjust and so work to convince the judge to reprogram the system (rewrite the law) to produce a “just” result. For several decades this strategy proved lucrative and self-gratifying for many lawyers and some of their clients. Unfortunately, too much reprogramming has rather corrupted the system itself.

And what does this have to do with debating? The proper tools of the lawyer are not reprogramming skills, but rather the ability to make the best of the materials at hand, meaning the law as it is and the facts as they are. And that requires a rather different skill set from those of a fictional, putatively heroic but in reality quite reckless and dangerous Captain Kirk.

These skills prominently include those developed through debate. They entail actually putting oneself in the shoes of one’s opponents, working to understand what the other side says, what they are after, and why they believe they are in the right. Making the best argument one can for a position with which one disagrees, perhaps violently, is not or should not be dishonest but analytical. Every position ever taken on any issue has a logic and set of assumptions that make it “work” at some level. Even the most clearly evil positions and policies have had proponents at various times; obvious examples include Hitler’s demand for Holocaust and Stalin’s Ukrainian genocide. One may think (and I would think) that the proper response to each is a just war. But what if one faced either Hitler or Stalin on the floor of a legislative assembly? What if one had to answer the calumnies on Jews, Gypsies, or Kulaks in front of a court that was open to persuasion either way? To simply declare the proposed policies evil would be correct. But the mere affirmation of natural law’s condemnation of genocide would not fulfill one’s duties or prevent the horrors being proposed. One would have to show where the evil lies, which would require parsing the logic and unpacking the assumptions of the other side, then showing their incongruities with one another and with the law. What is true for clear evil surely should be recognizably true for other positions with which one disagrees.

Anyone who has attempted a persuasive argument, either in court or out, has had to characterize the arguments of the other side in some sense. One can, of course, simply resort to name-calling and lies (e.g., pro-life forces are “radicals” who are “antichoice” and “antiwomen”). Sadly, if one has enough friends and allies in the court or the media, one may win with name-calling alone. But most people most of the time win their “case” only by recognizing the logic of the other side’s arguments. Thus, for example, much of the abortion rights movement is, in fact, rooted in a conception of the good, prioritizing bodily self-mastery, material well-being, and individual choice—all goods of some sort—above the higher good of innocent life. Failing to recognize this logic undermines one’s ability to show the nature of abortion rights proponents’ assumptions regarding autonomy and the ends of life, making counter-arguments necessarily weaker.

Relatively few people engage in such arguments any longer, however. On college campuses “trigger warnings” and other policies positively aim at preventing consideration of hot-button issues. Even in public life one risks one’s livelihood if one speaks out on the “wrong” side of an increasing variety of issues. What is happening, of course, is that brute force is replacing reasoned argument. And one important reason for that is the fact that Americans no longer value engagement in reasonable debate as a good thing. Victory for “the good” has increasingly become the only valuable thing in public life. One who is “on the right side of history” should not, after all, be detained by arguments from bigoted losers.

My point, however, is not simply that the left has stamped out reasoned debate on many issues. More than this, we all have allowed our concerns with “authenticity” and the feelings of potential debate participants to infantilize even our professional schools. One should be able to argue on either side of a debate over whether a corporation is at fault for damages from a toxic spill and over whether a national rule decreeing recognition of same-sex marriage would be good for our culture and even over whether universal suffrage is a good idea. One should be able to do this without thereby coming to think that it does not matter which side wins in such a debate. One must, rather, come to understand that the skills of a debater help one learn more about the goods, the strengths, and the weaknesses of both sides of an argument. In the process, one also should learn that those on the wrong side of an argument are fully human, rational beings worthy of respect, who should be taken seriously even if they are, in the end, wrong. Indeed, so long as the argument is rationally made, without force or violence being involved, even the most outrageous views must be considered in a civil manner, lest we lose our ability to answer them.

As to the lawyers, they must be able and willing to argue what may appear to them the weaker side of some issues. But they should do so with the knowledge that they are not, in fact, the final arbiters of the truth in court. Even in court there sometimes are surprises, and a judge (or jury) may well find an argument or fact the lawyers discounted to be more important than they did. Humility, not cynicism, is the friend of truth for the lawyer.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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