Civility and Formality

Civility and Formality

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Incivility is like injustice in Amartya Sen’s account: it is easier to identify clear cases of injustice than to say what justice consists in, and likewise it is easier to identify conduct as uncivil, that is, as an instance of incivility, than to say what civility actually is. Moreover, just as Sen maintained that “we can have a strong sense of injustice on many different grounds, and yet not agree on one particular ground as being the dominant reason for the diagnosis of injustice,” so equally we can identify incivility (in the words of one law review article) as “hostility, combativeness, rude behavior, insults, threats, or demeaning conduct or words,” without being able to say which of these—the rudeness, the hostility, the insults – is key to the diagnosis. Maybe that doesn’t matter much for the codes that many jurisdictions and bar associations are having to set up to combat incivility among American attorneys. There seems no reason why such codes can’t just consist of a list of prohibitions, such as: “Never, without good cause, attribute to other counsel bad motives or improprieties. . . . Never engage in conduct that brings disorder or disruption to the courtroom.” Or, if they want to forsake the via negativa, they can add affirmative admonitions, such as “always uphold the dignity of the court” and “be punctual and prepared for all court appearances,” without having to prioritize the items on the list or privilege any one element as the essence of civility. And there may be philosophical reasons behind this approach. Both civility and its opposite may be family resemblance terms, which cannot be defined in terms of necessary and sufficient conditions. Some scholars have suggested that we can’t say much more about incivility than (like Justice Potter Stewart on “hard-core pornography”) we know it when we see it, though they reassure us that “there is sufficient consensus on the meaning of political incivility . . . that promoting political-civility norms is reasonable and practical.” Still it would be a pity if we could not say anything more than this about what civility involves; I do not mean the actions it requires, but the sort of virtue it is. It would be good to have some sort of abstract understanding of civility and incivility, not because abstraction is valuable in itself but because one might want an indication of how we extrapolate from the examples we are confident about and think about other cases that may be less familiar or more controversial or more challenging. Also it would be helpful not to confine our discussion of civility to particular settings—the legal profession or behavior in courts, for example. Civility for lawyers may not be the same as civility for politicians, and civility for politicians is not the same as civility for ordinary citizens in their arm’s-length dealings with one another. But they are still all instances of civility. So we need to be able to say something about what is in common here, even if we don’t offer it in the form of a definition. Also we want to be able to distinguish civility norms from other sorts of norms (such as professional ethics) in a given setting. We should not fall into the trap of regarding incivility as the sum of all bad things in people’s public dealings with one another. Consider the issue of hate speech, for example. Although hate speech is usually uncivil, incivility is not its specific vice, at least as the law understands it in countries that have hate speech laws. “Hate speech” is defined in the first instance as speech that is calculated to have a certain social effect: the British formulation refers to “words . . . intended to stir up racial hatred,” the Canadian formulation refers to statements that incite “hatred against any identifiable group,” and the New Zealand formulation (my favorite) refers to “words likely to incite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of [their] colour, race, or ethnic or national origins.” True, the British and New Zealand formulations require speech satisfying this condition to also be “threatening, abusive, or insulting” before it can be prosecuted, and that sounds like incivility. But not all such uncivil speech is penalized. What matters for the hate speech legislation is the effect the speech is calculated to have on social peace and on the dignity and security of vulnerable groups. That evil is additional to and in my view much worse than the incivility. (I do not find the effort of scholars such as Robert Post, who try to analyze hate speech laws purely in terms of civility norms, very helpful.) Sometimes to call something uncivil is radically to underestimate or misconceive its wrongness. I think it is good to cultivate a sense that there are many different kinds of wrongs and vices that may be exhibited when people speak or participate in public: mendacity, insincerity, vulgarity, indecency, a breach of privacy, defamation, the insensitive disruption of a funeral, inflammatory rhetoric, incitement to violence, and so on. Everything is what it is. There is no point in stretching the concept of incivility to cover all these things; and that means we have to have some sense of the specific character of civility. There is one other point about the value of abstract inquiry into the character of this virtue. It seems unlikely that civility is an absolute requirement or an unconditional virtue—a virtue in all circumstances, at least as it is currently understood—or that the positive and negative admonitions of civility codes are moral absolutes or categorical imperatives. Other chapters in this book provide examples. Sometimes hostility and combativeness are what a situation requires; sometimes it is important to be rude, to act outraged, or just to burst through the established liturgies that define and protect an existing form of life. Perhaps sometimes civility should give way on the other side, too: it should give way to love and to a kind of relation between persons that goes beyond the chilly limits of mutual respect. It may be a mistake to seek a definition of civility that makes it always good, always desirable, even as we recognize that—as things stand, in the peculiar pathologies of legal practice, say, or certainly political practice in early twenty-first-century America—civility is something that right now we need much more of.

Source Publication

Civility, Legality, and Justice in America

Source Editors/Authors

Austin Sarat

Publication Date

2014

Civility and Formality

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