I have been asked to talk about democratic citizenship and civil conversation and what law has to do with it. I have been asked in particular: How are legal traditions and legal conversations implicated in our common life as citizens and, I presume, as residents, and in our political conversation? What can law contribute toward a restoration of the virtues required for democratic citizenship and civil conversation? At first, I thought about this second question as a question about the resources of law for repairing or mending political conversation.
Put this way though, the question is too easy to set aside. For while law is a matter of language and speech, legal language and conversations are not strictly "resources" to be put to use this way. Rather, I would argue, in answer to the question of how law is implicated in our common life, as did Hannah Arendt in The Human Condition,' that laws are the walls of the city or polis. And language is the medium of law. It is more than a tool or resource; it constitutes the shelter from which we know the world and act in it. As a matter of language or speech, law is susceptible to the many difficulties of other sorts of speech, including that of politics and of ordinary conversation. That law is a matter of language reinforces the significance of the issue raised by this symposium; unfortunately, it does not contribute the resources that would solve it. Let me suggest another way of getting at the issue of law and the current state of political speech.
We often hear, as we have at this symposium, that our political discourse is in bad shape. For this reason, many worry about democracy. If public or political discourse is in such bad shape though, why are we worried about democracy as such? We should worry first about discourse, or about language and speech. In the longer work from which this lecture is drawn, I suggest that there are at least two discourses, which overlap with political discourse, that indeed attend very carefully to language. These are the discourses of law and of the humanities. (I leave it to this audience to consider the place of theology.) They indeed have their own pathologies, but though these discourses may lie or deceive or go wrong in other ways, they are not careless in the ways that ordinary and political speech may be. In what follows, I will first refer to the episode of President Obama's 2009 inaugural oath to get at some distinctions between careful and careless speech. I will then take a quick and dirty look at how our law treats language.
Carefulness about language is crucial because carelessness poses a worse danger to speech-whether political, democratic, or ordinary-and to the ways words bind us than do ignorance and lies. Falsehoods and deception, even ignorance, can be called out, challenged, and addressed, as indeed they often are in law and in education. But when speakers and hearers fail to notice what is being said and how, words threaten to lose their ability to shelter us and to show us our world.
"Democratic Citizenship and Civil Political Conversation: What's Law Got to Do with It?,"
Mercer Law Review: Vol. 63
, Article 7.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol63/iss3/7