Convictions : literocrisy

Not Defending the Indefensible

Eric Posner — Fri, 04 Apr 2008 20:33:00 GMT

Marty, you sure read a lot into my post, which was meant as a critique of Sands' view that American lawyers should be prosecuted in foreign courts if they give legal advice that results in international law violations, not as a defense of the torture memo. I certainly am not going to defend the memo. With the benefit of hindsight, it is clear that this memo and the other legal memos issued by the Bush administration were a failed effort in living constitutionalism. The Bush lawyers apparently believed that the political establishment would accept their expansive theories of presidential power-that they could take further steps forward on behalf of the executive branch, which has been accumulating power for hundreds of years, as a result of changing attitudes caused by the 9/11 attacks. It is clear that they were wrong, and now they are paying the price. It is possible that the failure was due to the legal-craft defects in the memos. More likely, the lawyers simply misjudged the response of Congress, the public, and the media. After all, all efforts at constitutional change outside the formal amendment process necessarily involve aggressive readings of the law, which lawyers recognize as legal-craft failures but which may nonetheless succeed. It is an important example for Jack's theory, which needs an account as to why some efforts to entrench the preferences of temporally extended majorities succeed and others fail.

It is equally clear, I think, that the Kosovo decision did exactly what the torture decision failed to do: it effected a change in the law. Whereas before the Kosovo intervention it was clear that a non-defensive invasion of a foreign country without Security Council authorization violated international law, after the intervention all kinds of people-international lawyers, diplomats, politicians-claimed that there was an implicit exception for humanitarian intervention. The intervention had other implications for international law that are being felt to this day. Whether this quite obviously illegal act had a good or bad effect on international law is a political and moral question. This was exactly my point: is this the sort of question that should be answered by foreign courts, as Sands would have it? If you think that the effect on international law of that decision has has been a good one, then you cannot agree with Sands's view, unless you believe that it is right for trial judges in European countries to set the rules for nations in the course of adjudicating criminal trials of American and other foreign lawyers.

As for your claim that my view is cynical, I was actually more afraid that someone like Jack would say that it is trite. Jack, after all, accused Dahlia of literocrisy when she said that she was appalled by the influence of politics on supreme court decisionmaking. I'm "shocked, shocked," says Jack, to see the political views of supreme court justices influencing their decisions, and he won't be a bit surprised, he continues, if the court recognizes gun rights on the basis of an incorrect reading of the Constitution. Your reaction to me was, in substance if not in tone, exactly the same as Dahlia's reaction to Jack. How can you be so "insouciant," she said (actually she didn't use that word), about the justices inventing gun rights? His response is that he does care but he is interested in a different question, the question of how constitutional change occurs. Jack's vision of constitutional change is court-centered; in my own work I have focused on how constitutional change occurs through struggles among the three branches as well, and so a further question is how the executive branch effects constitutional change. You see, and how many times am I going to quote this line from Jack?, the purpose of judicial review is "to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities." This prescription assumes, correctly in my view, that legal-craft error is not just the result of incompetence or bad faith or evil; it has to happen if we are to have a living constitution. And it will be done by all three branches, not just the courts, in the course of advancing substantive views about their constitutional roles. So the whole question boils down to the issue of who gets to determine whether a craft-error was a mere error or constitutional change. Jack would say, "social movements." I would say, "politics." Sands would say, "judges." But why should judges make such essential political-constitutional decisions? They are not the arbiters of the living constitution, as Jack has so painstakingly demonstrated.

I am sorry that my teasing of Philippe Sands (who is made of sterner stuff than you might think) led you to believe that I think that there is nothing of moral significance in this debate, or that your (or his) indignation was feigned. If you still don't understand the source of our miscommunication, read again Dahlia's post to Jack, and his response to her. I don't think anything could be clearer, and I feel that we have already tested our readers' patience.

Hypocrites and Literocrites

Eric Posner — Mon, 31 Mar 2008 16:19:00 GMT

In this bloggingheads.tv episode involving my co-bloggers Dahlia Lithwick and Richard Ford (I checked it out because I wanted to confirm that they have corporeal existences and are not merely algorithms invented by Slate's IT staff), Dahlia accuses the Bush administration of hypocrisy for claiming, in the Omar and Munaf case, to be concerned about respecting the sovereignty of foreign countries. The Bush administration, after all, did not care so much about the sovereignty of Iraq as to refrain from invading that country. Iraq aside, is it hypocrisy for a nation to profess respect for international law but then to violate international law whenever doing so is in its self-interest, when all other nations are doing the same thing?

Hypocrisy is something more than dishonesty: not all liars are hypocrites. It seems to have more to do with lying about one's character. A hypocrite holds himself out to be sincere, courageous, respectful, honorable, and in all other respects virtuous, when he or she is none of those things. However, often hypocrisy is a socially necessary trait, and we frequently observe groups of people profess respect for norms, ideals, or aspirations that no one obeys. In such cases, you will often find a few individuals who refuse to go along with the game and pronounce themselves outraged that people are not acting consistently with their words. We need a new word to describe these critics-people who confuse ordinary hypocrisy (which is bad) and social hypocrisy (which is necessary and unavoidable), and accuse everyone of hypocrisy because they act like human beings. Let me propose a new word for this trait: literocrisy. The literocrite condemns people for uttering social lies that no one believes.

When Captain Renault, says "I'm shocked, shocked to find that gambling is going on in here!", he's not being a hypocrite, he is satirizing the literocrite. When everyone understands that gambling is going on, even though everyone professes not to believe that gambling is going on, only the literocrite is outraged. The literocrite believes that people should always be candid about their motives, even when there are good social or political reasons not to be.

Governments understand that they cannot always act consistently with public opinion, in their own countries and elsewhere. And so governments rarely give candid explanations for their actions. This is driven by political necessity: if your support is derived from a coalition of diverse groups, you want each group within the coalition to believe, as long as possible, that the government serves their interests. And so when the groups' interests converge in favor of a particular policy, but are based on different ideological commitments, the government wants to act consistently with the overlapping interest without risking controversy by taking a position on which of the ideological commitments it cares about--hoping to put that off till a later day when no such ambiguity remains possible. When critics detect inconsistencies between the words and the behavior of governments, one can imagine the government officials saying to each other: "What literocrites! Do they really believe that a functioning government can always be honest about its motivations?" And, indeed, because some journalists are not literocrites, but understand exactly what is going on, while realizing that there is good copy in pointing out government hypocrisy, we should recognize that these literocrites are also hypocrites-professing to be literocritic when they really are not.

To be sure, some people are fooled by these governmental statements. The hard case arises when insiders understand the lie and outsiders do not, but most observers would agree that the lie is socially necessary and probably harmless. Here, there is a narrow line between literocrisy and mere truth-telling.

One of the great sources of literocritic confusion is the law. Law professors (or most of them) have believed since the legal realist movement of the 1920s, that when judges decide cases according to the "law," they are in fact smuggling in personal and political biases, whether they know it or not. Judges virtually never admit that this occurs. Many judges may not believe it, statistical evidence notwithstanding; others probably believe that admitting that their biases might influence their decisionmaking would weaken the legitimacy of the courts, even though bias is unavoidable and there is no realistic solution to the problem, and even though most (?) people suspect that judges have biases. When journalists detect biases in judicial opinions, and express outrage, and accuse the judges of hypocrisy, they sound like literocrites to jaded law professors like me and Jack-who says that he was not "shocked, shocked" to hear from Dahlia that Supreme Court justices' political biases were on display during oral argument.