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Monday, May 26, 2008

An Academic Manifesto From A "Courageous" Scholar

In response to my self-congratulatory post below, Brian Leiter adds a very thoughtful comment extending our ongoing discussion on the blog about civility, the search for truth, and so on.  It's worth reading.  Since my reply on the comments was running long, and since it's a nice opportunity to talk more broadly about the role and duty of academics, let me put up my reply as a post.

Brian, I appreciate the preface, and value the sincerity of the compliments with which you begin your response, precisely because of the critical comments that follow in their wake.  I don't think you throw around compliments where you don't think they belong -- it would, indeed, be antithetical to the argument you advance -- so when I get one from you I appreciate it.
Let me say that I suspect we agree about far more than we disagree about here.  I agree that civility can come at the cost of sincere and forceful argument about things that matter.  I think getting to the heart of a disagreement is at the heart of useful discussion, and said so recently in a little dialogue with Orin on this site.  To do so requires speaking clearly and sometimes bluntly.  Although I tend to have relatively few strongly held views, and given my particular and somewhat peculiar (but not unknown; see, e.g., Sandy Levinson) role as someone who is deeply interested in law and religion and sympathetic to religious individuals and communities but who doesn't himself come from a religious perspective, I am often cast in the role of a proceduralist or mediator who wants to explore common ground.  But we cannot usefully do that by ignoring or pretending away bedrock disagreements.  Rather, the better we can identify those disagreements the better we can both reach common ground on some shared premises while starkly revealing the places where agreement is impossible.  Given this approach and my own priors, I often am a kind of "on-the-one-hand, on-the-other," walk-a-mile-in-the-other's-shoes type of writer.  But that is my nature and I don't think it's the only way to go.  To the contrary, precisely because it is my nature I respect and admire those people who have and argue strong "convictions" and "arguments."  By calling them that, I don't mean to belittle them or to say they are not true; you would not make them if you didn't think they were true, and you support them by arguments.  I am just saying generally that I agree that the truth is the truth and that it is important to argue for it and not let civility stand in the way of doing so; precisely because I tend to make few truth-claims, I value those who do and often find arguments with them productive and valuable.  I wish more people were willing to state their views bluntly and boldly, although also while meeting minimal criteria for sound argument.

All of this is tied to our common sense of the underlying importance of meaningful discussion, rather than blather, in the academy.  Civility can be a form of blather, although it's important to note that it isn't necessarily so in every case.  And a willingness to either back away from arguments, or to ignore what one thinks is simply the truth or simply a bad argument and not label either of them as such, or to flatter where flattery isn't called for, can indeed detract from serious argument.  You know I strongly believe -- and have thought about it more and more as I become interested in the law of academic freedom, and for that matter as I approach my own tenure determination -- that academics have taken on a role that they must honor, that they must be steadfast in arguing what they believe to be true, in backing up those arguments, and in sweeping away poor argument. 

You are forgiving about, without necessarily excusing, some of the reasons why people sometimes fall short of that standard.  I have publicly been less forgiving.  I see evidence all too often that there are junior faculty members out there whose pre-tenure activities are geared toward avoiding controversy, not saying what they believe to be true, and otherwise calculating their moves, whether as scholars or members of the university community, with tenure in mind.  Don't offend so-and-so; do flatter so-and-so; make sure you cite your own faculty; don't write on controversial topics; at one time, if not still, don't write about race if you are a member of a racial minority, and so on; and perhaps in some cases, if you write from a religious perspective, try not to show it: all of these are the kinds of advice that people regularly receive pre-tenure. 

I understand why and how it happens.  I might add that in my view one of the biggest influences on such behavior is often the pernicious influence of senior faculty members who ought to be inculcating better values in their junior colleagues but instead are counseling them to do what they need to do to win tenure.  By no means is this universal among either junior or senior colleagues, but it is too common for comfort.  If the core academic value is the search for truth without concern for fear or favor, then strategizing in this way is poor training for a sound future as an academic.  There are good reasons to be humble and careful as a junior faculty member, whether as scholar or colleague; one doesn't know everything yet, and one should therefore make one's claims carefully and humbly.  But that is about recognizing your limitations, not acting strategically with tenure in mind.  I had thought that tenure should be a reward for those people who have demonstrated not only that they meet the criteria for tenure, but who also have demonstrated that they will write whatever they need to write, and make whatever arguments they believe are best, without regard for consequences and even in the absence of tenure.  Thus I have written, keeping in mind always that one must meet the standards of one's field, that it is the folks who act as if tenure were irrelevant who most deserve tenure, and conversely that the folks who lack courage before tenure give us no special reason that they will use their tenure in any meaningful way once they get it; to the contrary, those are the people who, onec they become senior, may well internalize those strategic decisions, demand flattery and silence from juniors, and otherwise contribute to poor values in the academy. 

[Totally parenthetically, when I was at the new law profs conference a few years back, someone put up his hand and said, doubtless without sufficient backing data, that the faculty he was joining was full of reactionary fools, and he wanted to know how he could fight the power structure there -- without endangering his tenure chances.  Profiles in courage indeed!  I have long hoped to get a chance to speak at one of the new law prof conferences precisely because I want to share this anecdote, against which much of my own career so far has been a horrified reaction.]

So I think we agree about much.  There should be "less anxiety about civility, and more anxiety about truth, sensible argument, and intellectual integrity."  We must value truth first and foremost.  We must, within disciplinary standards, have the presence of mind and force of will to say what is right and what is wrong, what is good argument and what is bad argument.  Civility should not serve as a brake on our doing so, or it becomes something other than civility; it becomes servility.  "Here I stand, I can do no other," or "Still it moves," should be the watchwords of the academic, not "It's a beautiful day in the neighborhood."

None of this is to say that one can't be blunt and fierce in defense of the truth and civil.  Sometimes those two may be in tension, but more often, I think, they are not, and sometimes one can actually serve the other.  There is a difference between annihilating an argument, step by step and sentence by sentence, until nothing remains of the opposing argument, and disparaging a person.  There is a difference between saying, as I recently did of Phyllis Schlafly's JLPP piece, that not one sentence of it is either honest or valuable, which I think is true and eminently supported by the article itself, and saying she is an idiot.  I am not terribly interested in whether she is an idiot, I fear making such judgments lightly in a fallen world of which I am one more fallen remnant, and in any event even a stopped clock can be right twice a day; I am interested in whether her argument is wrong.  Because there is room for common ground in argument, as well as productive disagreement on fundamentals, I try to avoid incivility because I think it ultimately detracts from the useful truth-searching discussion one could have in such circumstances rather than engaging in simple fireworks.  Finally, there is another reason I value civility: the Learned Hand-ian spirit of liberty in which I am not always sure I am right, which leads me to want to make modest claims carefully and in a spirit of charity towards others.  That does not mean disclaiming those convictions that I do hold as bedrock truths, or ignoring what I think to be simply wrong or worse; even when you remind yourself that you could be wrong, you must still speak out on those issues about which you think you are right.  But it does mean I try to enter the fray from something of a spirit of humility.

These remarks aren't targeted at you or your writings in general; they are simply a response to what you have said in the comment I am responding to here.  I'm not accusing you of incivility in any particular case; not for fear of offending, I hope, but because I don't want to get side-tracked.  I'm saying that I think it is possible to be civil and still be blunt about the truth and about identifying good and bad arguments.  I also think that this is more often than not both an instrumentally valuable approach, in that it can lead to further discussion of a useful nature rather than shutting off what could be a productive discussion too early, and also an intrinsically good form of argument for academics, even for those of us who agree finally that the most important thing is the search for truth, not making nice with each other or engaging in meaningless flattery.  I don't know that you disagree with me about any of this.  I think we might disagree on what constitutes civility or incivility, or on what constitutes "productive" and "unproductive" incivility.  That's fine with me.  I still think we agree on much more than we disagree about here, at least in principle.

One last word by way of personal privilege.  Being Canadian, I am just a little dry in my sense of humor.  In reprinting Dan's remark I didn't mean to suggest that I am actually the god-king the description evoked.  (I'm not saying I'm not; I decline to say whether I think I am or not.)  Like the second half of the title of this very post, it was primarily by way of gently poking fun of myself.  I'm not really the kind of guy who would seriously draw attention to his own glowing press notices.  Although, fallen creature that I am, I am susceptible to flattery, I try not to take it that seriously, and if I did it would far more likely have to do with my great physical attractiveness, and the fact that I possess the power to read men's minds, than with my academic acumen.  I had thought that was clear from the post, but I'll certainly reiterate it here.

I was serious about the tattoo, though.               

Posted by Paul Horwitz on May 26, 2008 at 11:14 AM in Life of Law Schools, Paul Horwitz, Teaching Law | Permalink


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Tracked on May 26, 2008 11:38:06 AM


I agree with Joe: fantastic post. I especially liked the observation about how strategic thinking leads to small-mindedness as you age ("the folks who lack courage before tenure give us no special reason that they will use their tenure in any meaningful way once they get it; to the contrary, those are the people who, once they become senior, may well internalize those strategic decisions, demand flattery and silence from juniors, and otherwise contribute to poor values in the academy. ") Smart, well-executed, observation!

Posted by: david hoffman | May 27, 2008 11:59:29 AM

Actually, this is really the more pertinent link to my earlier comments on this issue:

Sorry about that.

Posted by: Brian | May 26, 2008 12:30:53 PM

Thanks for the thoughtful and more detailed response than my late night comment deserved. Mostly this seems right to me, certainly in the context of actual intellectual and scholarly debate. Part of the difficulty is that the intellectual level of the blogosphere is so low, and it doesn't get any higher when people pretend otherwise. One shouldn't confuse the norms that ought to prevail in genuinely intellectual contexts (which is why Easterbrook's paper-over-the-shoulder technique strikes me as over the top) with norms that in both the political context and the blogosphere serve too often to legitimize and dignify the abhorrent and the foolish. Most of what I had to say about this not very important issue I said quite some time ago here,

and it still seems to me right. And I also don't think it's very far off what you write above, even if your emphasis is rather different.

Posted by: Brian | May 26, 2008 12:21:54 PM


I find it hard to single out, from your stunningly rich and thoughtful post, a sentence that sparked more reflection than others. One sentence, however, prompts a question.

The sentence: ""I had thought that tenure should be a reward for those people who have demonstrated not only that they meet the criteria for tenure, but who also have demonstrated that they will write whatever they need to write, and make whatever arguments they believe are best, without regard for consequences and even in the absence of tenure."

The question: Do you think a law school should consider changing its tenure standard to include just the demonstration you describe? Put another way, if, as you say, we should target tenure's reward at those who write with courage (to compress a bit), why not include that desideratum in the tenure standard itself?

With admiration for your post,

Joe Miller

Posted by: Joe Miller | May 26, 2008 12:15:03 PM

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