Deal W. Hudson
May 1, 1998
If you were a classroom teacher during the ’70s and ’80s, like I was, you probably noticed how students were adopting talk-show manners. The intensity of feeling, not a logical inference, was treated as the surest criterion of truth. To protect these privileged feelings, the font of wisdom, self-esteem became the purpose of pedagogy. Such silliness could only last so long. Now the spectacles of the ’90s are fashioning a different species of truth. As the TV therapist was replaced by the TV lawyer, we have become less preoccupied with defending our feelings than with doing what lawyers do—that is, defending our interests.
Within boundaries of morally neutral ethical rules, lawyers are pledged to pursue their client’s interests. Often the facts fall victim to zealous advocacy. But the advocacy model is not to blame. When capable counsel, fairly matched, represent competing interests before a neutral fact-finder, the system works quite well. But a media-saturated environment such as ours creates mutant offspring of noble parentage. With the spectacle of O.J., the Menendez brothers, the nanny, and now the president himself, our culture has become obsessed with legal-speak.
The advocacy model of disputing truth, which should be confined to the courtroom, has spilled over into the public square. The radio call-in show, not Oprah or Phil, is the new paradigm. We trust such advocacy to work in court due to the presence of a neutral, and presumably wise, arbiter—the judge. The possibility of fairness is created by the interaction of the three sides, with the authority of law and court providing a basis of sound judgment. Just as therapy is best confined to the doctor-patient relationship, so the techniques of legal advocacy are best left in the courthouse.
Public discourse now rings with the strident voices of those who accuse and those who defend. There is no room for the give and play of dialectic, the sifting through of evidence, the gradual adjustment of opinion before reaching a conclusion. The feminist unwillingness to recognize the abuses of presidential power against women is a good case in point. “That’s my story and I’m sticking with it,” the punchline of an old joke, has now become the mantra of the lawyer-turned-celebrity.
It should come as no surprise that pure willfulness has come on the heels of the past decade’s emotivism. When Donahue turned Socrates into a therapist with a hand mike, it was inevitable that Johnnie Cochran would eventually fill the time slot. When minds go soft someone will take advantage. Exalted feelings, no matter how rarefied, can hardly withstand the rhetorical intimidation of a legal intelligence motivated solely by the will to win.
The public, caught between the contradictory claims of rival attorneys, can only despair of ever knowing the truth. The media pundits, for the most part, have fallen into the same habit of judging arguments by the political allegiances of the person making them. An argument is credible, we are told because the person advancing it has no ulterior motive, no ties to a right-wing conspiracy, no lucrative book deals in the offing. The possibility of truth-telling itself, or objectivity as it used to be known, seems more and more remote.
One state judge in Virginia told me that this growing skepticism has already affected juries: “We are not sure what we know anymore. We don’t have any tacit knowledge anymore.” With common sense destroyed, he explained, jurors put too much confidence in purely empirical evidence and not enough on what we used to know about the connections between human nature, personal character, human habits, and predictable action. Jurors have become so familiar with the language of lawyers, they have started to think like them, which they are not supposed to do. “We need jurors who think like people, not like the attorneys who are arguing the case.”
The trouble is that people think differently in different ages. The intellectual machinery is the same, but the mental habits change. And with the rise of Court TV USA the mental habits of postmodernism are upon us: Like politics, as described by Henry Adams, public debate is nothing other than the “organization of hatreds.” That someone may be honest is the last thing considered. We only want to know what side he is on.
Motives have become the only relevant fact in a culture where everything is relative. Justice has been reduced to pure partisanship, the function of whose interests are represented by the person speaking. We are all “hired guns” to protect the hegemony of our sex, race, class, religion, and political persuasion. In our Court TV culture, facts are malleable and strategy is king.