Orin Kerr writes: “The Engligh language needs a word for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency.” If prof. Kerr will settle for a phrase, let me suggest ‘poetic justice as fairness’. I know it will never catch on among the non-Rawls joke getting set, but it’s the best I can do. (Actually what I am talking about is a slightly more generic version of what Kerr is talking about.) ‘Poetic justice as fairness’ denotes a vendetta-based, rather than abstract reason-based approach to argument. Dialectic as feud; Hatfields and the McCoys do thesis and antithesis, with stupidity as synthesis. The rule is: if you think your opponent commited a fallacy in the recent past, you are allowed to commit a fallacy. And no one can remember when it started, but the other side started it. It is difficult to break the tragic cycle of intellectual violence once it starts.
Timothy Burke has a post up at Cliopatra about why he doesn’t like Michael Moore, which is in this general vein:
What I find equally grating is the defense of Moore’s work as “fighting dirty” because the other side is doing so. I agree that many of the critics of Fahrenheit are astonishing hypocrites, applying standards that they systematically exempt their own favored pundits and politicians from, but the proposition that one has to play by those degraded rules to win the game repels me. If it’s true, then God help us all.
UPDATE: From comments received, it is clear my post appears even more naive than, in fact, it may be. I appear to be marvelling that these beings you call ‘humans’ sometimes employ rhetoric. Actually, I’m just giving a name to a peculiar slip. 1) You preceive that the enemy has employed a fallacy or other illicit rhetorical technique. 2) You denounce this as such. 3) You employ the very same trick against the enemy when the wheel turns and the opportunity arises. 4) You do so with a sense not just that it is fair to fight fire with fire but that somehow the bad argument has become mysteriously good, due to the fact that there is poetic justice in deploying it. (Admittedly, this isn’t what Burke is talking about, so my rather narrow point about argumentative psychology was muddled more than helped by the inclusion of the quote.)
2nd UPDATE: It occurs to me that the Rawls connection was probably not clear either. So I’ll just tuck a few further meditations discretely under the fold.
Why should poetic justice feel like argumentative fairness? Because it is right on the line between two senses of ‘just’: 1) x is just if x makes some sort of absolute moral sense; 2) x is just if x has been contractually agreed upon in advance by relevant parties. Rawls’ strategy, by means of his ‘original position’, is sort of to have it both ways. It’s sort of a social contract, and sort of an abstract argument. (This is violent oversimplification.)
Poetic justice as fairness is a matter of holding your enemies to positions they have ‘agreed’ to beforehand, even if those positions don’t make sense. So it feels fair in sense 2.
Let me provide a concrete example (which bears some relation to a spat I had with Tom Smith of the Right Coast some months ago, but I won’t pin the following tale on Tom.) Suppose you are a conservative who is bothered by the fact that conservatives are numerically under-represented in humanities departments. (Let’s grant under-representation, in some absolute sense, for the sake of argument.) Let’s suppose further that you are annoyed by what seems to you a flabby rhetoric of ‘diversity’ on behalf of affirmative action programs of which you disapprove. (Never mind for now that there are less intellectually disheveled ways of affirming affirmative action than incoherent hand-waving about diversity.) You think your lefty enemies are, by their own stated principles of ‘diversity’, committed to affirmative action for conservatives. This result would, of course, horrify the lefties. You therefore have, plausibly, the basis for a kind of reductio ad absurdum on the argument from diversity to affirmative action. (Yes, I know only foolish lefties would ever allow themselves to be pinned in this obvious way. Never mind about that.) Now: should you, as a conservative, actually affirm the absurd consequence of the reductio? Should you ask for affirmative action for conservatives? By your intellectual lights this would be wrong, because you are philosophically dead set against affirmative action. So no, you shouldn’t ask for it. Nevertheless your conservative mind may feel that it is not only tactically tempting, and a poetically just petard hoist, but truly intellectually fair, i.e. not hypocritical, to ask for it. Why? Because, in a sense, your opponents have ‘contracted’ to it by means of all the prior diversity talk. You feel they struck a deal in favor of this stuff. And fair is fair, when it comes to contracts.
More specifically, no one can plausibly complain that ‘x is unfair!’ if the following situation obtains: everyone who is unhappy with x has agreed beforehand to principles according to which x is fair; and no one who has not agreed to such principles in advance is complaining.
So if you would like the results – namely, more conservatives – and your opponents have implicitly granted that more conservatives would be fair in principle, then it’s fair to advocate affirmative action for conservatives. So you may end up in the absurd position of advocating affirmative action (which you don’t believe is right) on the basis of an argument (which you regard as nonsense) all the while feeling that this procedure is intellectually on the up and up.
I think people think this way quite a bit, actually. Especially in the sorts of cases Kerr discusses – namely, cases in which parties in and out of power flip-flop on any number of questions without feeling the least bit hypocritical. I think it’s because everyone feels that the other side has sort of ‘contracted’ to admit certain things as fair. But, of course, it doesn’t actually make sense to say that someone has ‘contracted’ to make a bad argument into a good one. That’s just not the sort of thing that can be established by contract.