Illustrations by Robert Meganck
Illustrations by Robert Meganck

In a classic tale, two sisters find themselves at odds over a single orange. Both want it. There are no other oranges in the house, and there is no option for one sister to obtain an orange from elsewhere. Who gets the fruit?

If the sisters were animals in the wild, perhaps they would fight each other to the death for the orange. But in a modern society, where it is unacceptable to commit sororicide over citrus, most disputes are settled by conversation — often more than one.

In the classic example, conversation reveals that one sister wants only the orange peel to make a cake, while the other wants only its juice to drink with her breakfast. The sisters get a knife, remove the peel, and squeeze the orange. Problem solved.

But how do they get to that mutually pleasing resolution when talking can be just as fraught as physical conflict? What if Sister No. 1 began by declaring that Sister No. 2 had the last three oranges that crossed the house’s threshold and that surely it is fair for her to finally have her turn? Or perhaps Sister No. 2 contended that she was battling a nasty case of scurvy — hence her desire for juice every morning — and therefore Sister No. 1 would be selfish not to yield the life-giving fruit to her. Perhaps the sisters reached an impasse and took to Twitter to make their cases, hauling up old grievances from years past, appealing to scientists for best treatments for scurvy, and catapulting #orangegate onto the platform’s list of trending topics. At that point, would it even have been possible to get back to the basic, highly relevant facts of the uses each sister intended for the orange — uses that could be reconciled?

Of course, the orange here is just a device for illustrating how conflict (or, in the original conception, legal negotiation) operates. In public discourse today, the orange might just as easily stand in for gun control, abortion, gerrymandering, or a host of other issues. Quarreling over the orange — whatever it might be — is an American tradition. But many today fear that the increasingly angry tone of this quarreling and the growing tendency of American society toward polarization are endangering this tradition of civil discourse.

“It’s not just that people disagree, because people have always disagreed,” says Wendy Perdue, dean of Richmond Law. “But what they’ve found is that disagreements have taken a different cast, where politics and disagreements have become increasingly personal, where we simply don’t think the other side could be rational or caring. We assume the worst, as it were, about those who disagree with us.”

Someone must teach that good manners, disciplined behavior, and civility - by whatever name - are the lubricants that prevent lawsuits from turning into combat. More than that, it is really the very glue that keeps an organized society from falling apart.

Perdue has in mind specifically an October 2017 study by the Pew Research Center that shows a striking increase in partisanship in the United States over the past 20 years.

“The level of antipathy that members of each party feel toward the opposing party has surged over the past two decades,” the Pew study reports. “Not only do greater numbers of those in both parties have negative views of the other side, those negative views are increasingly intense. And today, many go so far as to say that the opposing party’s policies threaten the nation’s well-being.” Those partisan views don’t stay within the political sphere; they trickle down into many areas of daily life: where we live, whom we marry, whom we talk with, and whom we avoid.

Even academics aren’t exempt from this tendency. Richmond Law professor Corinna Lain describes “intellectual bubbles” throughout the academy and society, where conversation among people who already agree with each other reinforces perceptions of the correctness of their beliefs. And Perdue, drawing from the research of Berkeley Law School Dean Erwin Chemerinsky, who spoke on campus in October as part of the Emroch Faculty Colloquy Series, observes that students today are more comfortable than their predecessors with “squelching free speech” when they find its content offensive, preferring silence to the discord and pain that such speech might cause.

To many nationwide, this movement away from civil discourse — the notion that people can “disagree without being disagreeable” — is a problem. American democracy is built on discourse. Legislative bodies are fundamentally structured around the concept of political discussion, while freedom of speech and the press, two of the most significant organs of debate, are enshrined in the First Amendment. The argumentation of the American court system, too, is fundamentally a form of public conversation: “We are necessarily dealing with folks who are on two different sides of issues, who are clashing in order to come to hopefully a better understanding of the issue and how the issue’s going to be resolved,” notes Richmond Law professor Henry Chambers. So important did former U.S. Chief Justice Warren Burger find civility to the practice of law that he declared that without it, “no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective.” Law schools, he went on to say, were perhaps the best institutions to inculcate this value in the next generation: “Someone must teach that good manners, disciplined behavior, and civility — by whatever name — are the lubricants that prevent lawsuits from turning into combat. More than that, it is really the very glue that keeps an organized society from falling apart.”

‘A contemptible hypocrite’

The Pew studies of polarization offer unusual evidence for what Americans have long believed: that civility and, more importantly, its democratic expression in the form of civil discourse, is deteriorating. The usual narrative charts a long fall from the high-minded debate of the Federalist Papers to the welter of misinformation and hysteria that characterizes so many political discussions that unfold on Facebook and in newspapers’ online comment sections today.

Quarreling over the orange

But even a brief survey of American history reveals that, to the contrary, the nation’s discourse has often been markedly uncivil. The presidential election of 1800, which would come to be revered for the peaceful transfer of power it effected, was marked by the extraordinary abuses the partisans of the four candidates — all of them lawyers — hurled at each other. Thomas Jefferson’s supporters declared that opponent John Adams had “a hideous hermaphroditical character,” while Adams’ supporters labeled Jefferson “a contemptible hypocrite” who would transform the country into a place where “murder, robbery, rape, adultery, and incest, will openly be taught and practiced, the air will be rent with the cries of distress, the soil soaked with blood, and the nation black with crimes.” So fierce was the conflict between the Democratic-Republicans and Federalists that two congressmen attacked each other on the floor of Congress with a cane and fireplace tongs.

It would not be the last such incident: Almost 60 years later, as the nation teetered on the brink of civil war, South Carolina Rep. Preston Brooks nearly killed Massachusetts Sen. Charles Sumner by beating him in the Senate chamber with a metal-tipped cane in response to unflattering remarks Sumner had made about Brooks’s cousin.

Virginia throughout the 19th century was so plagued by dueling that a provision was added to the state constitution preventing anyone who had ever fought or assisted in a duel from voting or holding political office. More than a handful of these duelers were lawyers: One of the earliest recorded, Peter Vivian Daniel, after killing his opponent, rose to be an associate justice of the U.S. Supreme Court, where he defended the status of African Americans as property in the infamous Dred Scott case. In the 1830s, a courtroom remark led to another duel between two Virginia lawyers, Arthur Morson and Richard Randolph, both of whom luckily survived.

The 20th and 21st centuries haven’t fared much better. The post-World War II Red Scare’s proponents turned their backs on civil discourse, branding any opposition as the creeping tentacles of communism; it wasn’t until Army lawyer Joseph Welch poignantly asked Sen. Joseph McCarthy during televised hearings, “Have you no sense of decency?” that the country began to claw its way back to clearer air and cooler heads. The civil rights movement, however, challenged many people’s belief that civil discourse had prevailed, marked as the era was by the killing and brutalization of thousands and the rigid opposition to the inclusion of African-Africans in any kind of public conversation. To much of a generation, the assassination of Martin Luther King Jr. signaled the failure of civility and civil discourse to effect meaningful change.

It was perhaps not surprising, then, that the civil rights movement gave rise to a persistent analysis of civil discourse as a central American ideal. Such arguments, in the words of lawyer and Amherst College professor Austin Sarat in a recent volume on civil discourse, contend that “all too often we hear the call for civility made with no reference to the background conditions that bring forth breaches of civility.” A narrow-minded focus on civility can lead the public “to ignore the limited cases where injustice, not lack of civility, is the problem that needs to be addressed and to act as if civility uniformly was aligned with justice and advanced the cause of human dignity,” he wrote.

Disruptions to civility, after all, were one of the arguments white supremacists marshaled during the civil rights movement to oppose efforts by African-Americans to gain equality. Thurman Sensing, executive vice president of the Southern States Industrial Council and a widely published columnist, for example, “deplored” the sit-downs being conducted across the nation, declaring that “the colored person who forces his way into a social situation where he is not wanted displays a peculiar lack of understanding of the civility common to decent people” in a 1960 newspaper column. Yet, if civil discourse rests on an understanding and acknowledgment of the equality and dignity of participants in a conversation, is such discourse even possible when one of those participants rejects this foundation?

Part of being a good lawyer and a good advocate is to develop a sympathetic understanding of what the other argument might be.

Such problems remain troubling, with few evident solutions. Still to paraphrase Winston Churchill on democracy, while civil discourse may be the worst form of public discourse — masking malignant power relations and privileging political correctness to the detriment of the true expression of belief — it seems better than all the other forms of discourse that have been tried. Without it, it’s hard to imagine what kind of public conversations could take place at all.

‘The strongest barriers against the faults of democracy’

As polarization has increased and fears about the decline of civil discourse have multiplied, some members of the legal profession have sought to step into the breach. Today, says Lain, “people are looking to lawyers again in ways that they haven’t been, as serving this critical function of being able to get sides to talk to each other and to bring in those listening skills that seem to have disappeared.” If the nation continues on its current trajectory of divisiveness, she argues, then “one would expect lawyers to play a more intentional role than they have in the past as facilitators of conversation and civil discourse and even healers in really a deeply broken world.”

There is precedent for the profession assuming such a role. In the early 1830s, Alexis de Tocqueville, in his celebrated observation of the fledgling United States, Democracy in America, noted that “the prestige accorded to lawyers and their permitted influence in the government are now the strongest barriers against the faults of democracy. … It may be that lawyers are called on to play the leading part in the political society which is striving to be born.”

As the law becomes increasingly professionalized, codes of civility are becoming a regular feature of legal institutions. In Virginia, the Supreme Court in 2009 endorsed necessary Principles of Professionalism for Virginia Lawyers to foster a higher level of “respect and courtesy” within the profession. Nationally, a series of American Bar Association presidents have made vigorous calls for increased civility: In 2011, outgoing president Stephen Zack declared that “the history of the profession is based on civil disagreement. Looking to the future, this is something we cannot lose.”

To Perdue, law schools may be the best places to ensure the preservation of that ideal. 

“Within legal education, there’s a very strong tradition of encouraging students to really come to grips with the argument on the other side,” she says. “Part of being a good lawyer and a good advocate is to develop a sympathetic understanding of what the other argument might be.”

But how exactly can that understanding be developed? Some of the answers may lie, interestingly, in legal writing, which over the past few decades has married the 2,500-year-old traditions of rhetoric with new understanding of how the human brain works.

To Richmond associate professor Laura Webb, who specializes in legal writing and analysis, cognitive science and psychology are key to argumentation, whether it takes place in the courtroom, on the street, or at the dinner table. 

“People do not want to give up on ideas that they already have,” she says. “If you already feel a certain way about gun control or about abortion or about whatever, everything that I say to you is going to be viewed through that lens, and you will not want to move from that — even though you may feel you are open-minded.”

Quarreling over the orange

That doesn’t mean that discourse among people who disagree is futile, however. Since Aristotle and Plato, conversation has been examined as a way to change minds and hearts. Aristotle pointed to three main modes of persuasion: ethos, or the credibility of the speaker; logos, or the appeal to logic; and pathos, or the appeal to emotion. All three continue to be relevant to civil discourse. The third prong, pathos, has maintained perhaps the uneasiest relationship with civility over the years, contradicting as it does the widely held belief that rational thought is emotionless thought — a difficult idea to apply to such controversial and inherently emotional topics as sexual assault and discrimination.

In fact, says Webb, emotion is a key part of the law — and perhaps by extension civil discourse — but one that must be balanced by other factors.

“It’s not enough to just have a logical appeal to the law,” she says. “You also have to have a story and a narrative and an appeal that speaks to how people feel because the truth is, as much as we like to think we are able to think in very logical ways, much of the thinking that we do is not particularly logical and not as reasonable as we think.” Too, while logic can never be ignored in meaningful conversation, emotion can offer necessary grounding to an argument, keeping debate from becoming too abstract and ignoring real-world implications of ideas and policies.

Lain agrees that while emotion need not be anathema to civil discourse, it does need to be balanced. “If you fervently believe in a view, your emotion’s going to be in there,” she says, “but the question is, is there intelligent, merits-based argument in there too?”

But in an era of “fake news,” intelligent, merits-based argument is also increasingly viewed by many Americans with suspicion. Universities can, by virtue of their mission, be a catalyst in fostering civil discourse, says Chambers — despite the belief of many that higher education is a bastion of biased liberalism.

“If you take [an] assertion to a university, we’ll try to put it through a rigorous analysis,” he says. “We’re trying to make sure that what people claim to be true is in fact true.” But such testing takes time, he acknowledges, and time may not always be available in a 24-hour news cycle. Instead of transforming civil discourse into a war of studies, then, it may be important to dig deeper to underlying convictions and philosophies while simultaneously tackling what can be addressed in the short term. “We don’t have to solve every problem before we can solve any problem,” he points out.

Chambers strives to practice what he preaches. This academic year, his proposal that the School of Law host a series of civil discourse debates has produced a sort of local testing ground for the idea that even in this contentious day and age, people can disagree on controversial topics without being disagreeable. The first debate, on gerrymandering, was so successful that he and Lain reprised it in modified form on election night at the Valentine museum in downtown Richmond.

In a nation of 320 million, these debates may be a drop in the bucket, but they are nevertheless a contribution to what University President Ronald Crutcher, late last summer, only weeks after violence broke out at a white supremacist demonstration in Charlottesville, described as the University’s responsibility “to model substantive and civil disagreement within a larger framework of common values.”

Common values are a matter of contention within the larger electorate, but in our daily lives, civil discourse may rest on three pillars that Chambers, evoking a speech by Barack Obama at the University of Notre Dame in 2009, is putting his confidence in: “Open hearts, open minds, and a belief that at the end of the day, everyone is coming in good faith.” Whether those values will sustain civility within the law and the nation at large remains to be seen.

Sarah Vogelsong is a Richmond-based newspaper journalist and nonfiction editor. See more of her work at sarahvogelsong.com.