Incivility as a tool for the marginalized

Much of the ranting about the problems with American law schools (here and elsewhere) strikes many observers as uncivil.  Many critics are over the top when they talk about law schools lying, deceiving, stealing from students, preying on the helpless, engaging in scams.  Such charges are often made in the clearest and most lurid form.  Many in the law school business are offended.  Why can’t people be civil?

Well, civility, as Bernard Harcourt (Chicago) writes in a new paper, The Politics of Incivility, one of those things that can best be enjoyed by those who control the mainstream of public discourse.  From the earliest days of America, incivility has been one of the defining characteristics of reform movements.  The language of the Declaration of Independence, which charged the King with doing all sorts of evil things, was hardly a polite and even-handed discussion of the matters at issue.  The rudeness of the Jacksonians, the venom of the Abolitionists, the gory rhetoric of the early labor movement,. the “revolutionary” agendas of the civil rights movement – all were “uncivil” because all needed to do something to gain attention from the vested interests that controlled the existing discourse.  At my law school parking lot this afternoon there was a bumper sticker that read, “Well Behaved Women Rarely Make History.”

In the paper, Harcourt emphasizes how the rhetoric of “incivility” is actually a political move to rule certain kinds of arguments by certain kinds of people off the stage.  Calling George W. Bush a “war criminal” or Bill Clinton a “lying S.O.B.” are both uncivil, but it is the marginalized, not the powerful, who need to resort to such terms to get attention.  No one covers a rally if the signs all say, “I am mildly disappointed with the status quo and have a suggestion to fix it.”

Harcourt (with whom I suspect I disagree on a lot of issues) is always an engaging writer.  Here’s my favorite insight from the paper:

But it is not only revolutionary or radical politics that are uncivil, practically all politics is inherently uncivil—in the sense that it will have harmful effects on some of our fellow citizens.  Even mainstream politics—the Republicans and the Democrats—are consistently advocating positions that will harm some Americans, whether at the top or at the bottom of the socioeconomic hierarchy. Taxing the wealthy more (or not) will harm (or benefit) the financial position and welfare of different classes of Americans. There is no way around this. Given that politics is inherently uncivil, asking for civil discourse is somewhat hypocritical. It is like asking the executioner to smile when he pushes the syringe, or the police officer to say please  when he puts on the hand-cuffs. Why demand  civility in discourse when the discourse itself is inevitably going to produce uncivil outcomes?

Once the regular AALS publications start addressing our industry’s problems in a concrete way, maybe some of the rhetoric can be toned down.  But for now, we can expect more calls to the barricades.

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