It’s the Norm: French Lessons on the Limits of Law

It’s the Norm: French Lessons on the Limits of Law

It’s that time again.

Every two years I write an “Election Edition” of Five Minute Law. Two years ago, on the eve of the 2016 presidential election, I posted Political Correctness, Paleo Correctness, Trump, and What All This Has to Do With Lawyers.

The primary argument: political correctness, i.e. dogmatic liberalism, is a problem, but the proper antidote is true liberalism (in the historic sense), not prejudice. The secondary argument: lawyers have a special role in defending individual liberties and tolerance.

I think subsequent events have largely confirmed both arguments. The backlash against liberalism has proceeded on multiple fronts. And on each front, lawyers have played a prominent role.

It’s striking how many of the political fights over the last two years have involved litigation, lawyers, and judges. Take the “travel ban,” separation of immigrant children, the Mueller investigation and prosecutions, just to name a few. These battles have raged in the courts, not the halls of Congress.

Even the most recent political battle, while fought in the Senate, was about who would sit on the nation’s highest court. Everybody understood the stakes.

If there is one thing both sides agree on, it’s that law matters in American politics. Whether you send money to the Federalist Society or the ACLU, you understand the power wielded by those who interpret and apply the law.

This is partly because of the Supremacy Clause. When the Constitution is the supreme law of the land, interpretation of the Constitution becomes paramount.

Even aside from the Constitution, law is fundamentally important to American politics. Whether you vote for Ted Cruz or Beto O’Rourke, you probably like to invoke the “rule of law” in support of your political opinions.

The Constitution and the rule of law are supposed to keep the majority from oppressing the minority. And we want to prevent those who come to power in the name of the majority from abusing their power to the point where they no longer bother answering to the majority. It’s part of the “checks and balances” the American founders created.

They even left us with an instruction manual, in the best book ever written about American politics. It’s really not a book, but a series of essays anonymously published under the pseudonym “Publius.”

The real identity of Publius remains shrouded in historical mystery, but some believe he was connected to Aaron Burr.

Publius was bullish on the possibilities of an American republic but had one overriding worry: how to prevent American democracy from devolving into tyranny—either by the majority or by a demagogue claiming to speak for the majority. The Constitution—along with the Bill of Rights added later—was designed to prevent this.

But Publius understood the Constitution was not an automaton that, once set in motion, would guarantee freedom for his posterity. The success of the American experiment would depend on certain virtues of the people and their leaders. The republican system could be thwarted by a leader skilled in “flattering the prejudices of the people” who could “mount the hobby horse of popularity.”

So as great as the Federalist Papers are, they are not enough. We also need the second-best book about American politics. Strangely, the man who wrote this book was not a democrat, and not even an American. He was a French aristocrat named Alexis de Tocqueville.

In his two-volume masterpiece Democracy in America, Tocqueville tackled essentially the same problem Publius confronted decades earlier: how to keep democracy from turning on itself and threatening liberty. Or to put it in our contemporary terms, how to prevent a liberal democracy from degenerating into a corrupt democracy, leading to authoritarianism.

Americans might object, “what can this Frenchman teach us about democracy, much less about America?”

But one thing Tocqueville had over Publius was a broader perspective. When Tocqueville talks about “democracy,” he does not so much mean a form of government as a social system based upon equality, the opposite of a landed aristocracy. So while the Federalist Papers focus almost entirely on politics, Tocqueville steps back and looks at the effects of democracy on politics and society.

Plus, the fact that Tocqueville was an alien in America only added to his insight.

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America’s favorite philosophizin’ Frenchman

One advantage of Democracy in America is that Tocqueville exhibits no trace of sentimentality towards either America or democracy. While he finds many things to admire about America, and acknowledges that democracy has its advantages, he views both with a certain objective detachment.

Of course, you will not get that sort of honesty from American politicians today. They may betray the ideals of democracy, but you will never find them publicly criticizing the ideals themselves. No, they celebrate the “common man,” even if they wouldn’t be caught dead actually socializing with one.

Tocqueville, in contrast, does not praise democracy as man’s greatest achievement. Rather, he views democracy—of the social state—as inevitable, a fait accompli to be accepted. “I have not even claimed to judge whether the social revolution, whose advance seems to me irresistible, was advantageous or fatal to humanity,” he wrote in the Introduction to Volume 1, rather “I have accepted this revolution as an accomplished fact or one about to be accomplished.” (13)

And Tocqueville’s admiration for American democracy did not come from being born here. It arose from the fact that by the 1830s America had been largely successful in maintaining a peaceful and stable democratic republic. “There is one country in the world where the great social revolution I am speaking of seems nearly to have attained its natural limits,” he wrote, and “this country sees the results of the democratic revolution operating among us without having had the revolution itself.” (12)

This was in stark contrast to revolutionary France, which desperately needed lessons on maintaining a stable democratic republic. Tocqueville said he did not go to America “only to satisfy a curiosity,” rather he “wanted to find lessons there from which we could profit.” (12)

France was always on his mind. In contrast to some famous philosophers, Tocqueville generally says what he means in fairly straightforward language. But one thing that may not be obvious is that almost every time Tocqueville says something about America, he is comparing it to France. If he were to drop his elegant style and speak more bluntly, he would say, listen, France, if you want to see how to protect freedom from the dark side of democracy, look at how they do it in America.

But now, almost two centuries later, are there lessons we Americans can learn from Tocqueville?

I think so. There is a lot of wisdom in the 676 pages of Democracy in America (I recommend the English translation by Harvey C. Mansfield and Delba Winthrop). But if I had to boil it down to one word: mores.

Tocqueville starts by examining the institutions and operation of American government from the township up to the federal government and continues with a discussion of the advantages and disadvantages of the U.S. Constitution.

But he really gets down to the nitty-gritty in Volume 1, Part 2, Chapter 9: On the Principal Causes Tending to Maintain a Democratic Republic in the United States. Here Tocqueville tries to distill the essence of what makes America a successful democracy:

American laws are therefore good, and one must attribute to them a great part of the success that the government of democracy obtains in America; but I do not think that they are the principal cause of it. And if they seem to me to have more influence on the social happiness of Americans than the nature of the country itself, on the other hand I perceive reasons for believing that they exert less [influence] than mores. (294)

You may be thinking, what the heck are “mores”? It sounds like a dessert you eat on a camping trip.

Fortunately, Tocqueville tells us exactly what he means. “I understand by this word [mores] the sum of the intellectual and moral dispositions that men bring to the state of society.” (292) Today, Webster’s defines mores as “the fixed morally binding customs of a particular group.”

We don’t have to guess how important mores are to Tocqueville because he tells us explicitly:

I am convinced that the happiest situation and the best laws cannot maintain a constitution despite mores, whereas the latter turn even the most unfavorable positions and the worst laws to good account. The importance of mores is a common truth to which study and experience constantly lead back. It seems to me that I have it placed in my mind as a central point; I perceive it at the end of all my ideas. (295)

But even assuming Tocqueville was right, how do we apply this lesson to our present difficulties?

Trouble is, we don’t use the word “mores” much today. But we have a word that means something very close to what Tocqueville was talking about: norms.

Granted, it’s not an exact equivalent. When we talk about norms, we primarily mean unwritten rules that the politicians follow. When Tocqueville talks about mores, he’s referring more broadly to the beliefs and practices of the people and the politicians. But I think it’s fair to say that norms are a close cousin to mores.

So, to adjust and restate Tocqueville’s thesis in contemporary terms: laws are important to preserving freedom in a democracy, but norms are more important.

This is an important lesson, especially for lawyers. As practitioners of the law we tend to assume the law is what really matters. And it does matter. But perhaps norms are even more important.

Ok, norms are important, you say. But that’s too abstract. Which norms exactly? What are the norms that help maintain a democratic republic in America? And how do we enforce those norms?

Check back with me in two years.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.  

These are his opinions, not the opinions of his firm or clients.

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Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Political Correctness is a Real Problem, But Embracing Prejudice is Not the Solution

This presidential election year has brought us a lot of talk about political correctness or, to be more precise, the backlash against political correctness, which, as you may have noticed, has helped fuel the rise of a very unlikely major-party presidential candidate.

This is not a political blog, so I won’t bore you with my opinions on the presidential race, but I do want to clarify some things about political correctness and how it relates to lawyers.

Before I run the risk of “burying the lede,” here’s my thesis: political correctness is a real problem (contrary to some commentators on the left), but the antidote to political correctness is liberalism (properly understood), not prejudice (contrary to some commentators on the right), and lawyers have a special relationship to liberalism. More about the lawyer part later.

My conservative readers will bristle at the “liberalism” part of the thesis, but let me clarify. I’m talking liberalism in the broad historical sense, as in “liberal democracy,” rather than the narrower contemporary political sense, as in “Mike Dukakis was too liberal to get elected” (anyone remember him?)

This broader liberalism gave birth to the very concepts of individual liberty and tolerance—concepts alien to most of human history—that we now largely take for granted. The two kinds of liberalism are related, but they are not identical. To make matters even more confusing, contemporary American “conservatism,” at least the intellectual variety, is partly a branch of historical liberalism.

But “political correctness” must also be defined. Unfortunately, the term has become almost generic, now sometimes used to mean any belief system that is rigidly enforced in some group. Originally, political correctness had a more precise meaning. It essentially meant “dogmatic liberalism.” It was also associated with a hyper-sensitivity about any perceived slight based on race, gender, sexuality, etc.

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John Locke

“Dogmatic liberalism” is in some ways an oxymoron. Liberalism—the broad historical variety—could almost be defined as a rejection of dogmatism itself. John Locke championed the concept of tolerance, which was largely a rejection of enforcing dogmatism of the religious variety. Although tolerance is now sometimes associated with relativism, toleration originally was not based on the position that all moral viewpoints are equally valid, but the idea that you could tolerate even fundamentally wrong viewpoints for the sake of greater goods, i.e. freedom and social harmony.

It is no accident that Locke was also the philosophical godfather of the founding principle of America: “inalienable rights” to “life, liberty, and the pursuit of happiness.” (Jefferson substituted the “happiness” part for Locke’s “property”).

Later, John Stuart Mill became the foremost philosophical spokesman for liberty—an old fashioned word for freedom—especially liberty to express different viewpoints on fundamental issues. So Mill would be surprised to see his liberalism morph into a form of dogmatism.

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John Stuart Mill

The oxymoronic nature of “dogmatic liberalism” reveals its great danger. But to understand that, we first have to understand the opposite of political correctness. It has no equivalent label, so I will give it one: “paleo correctness.” Paleo correctness is as old as human civilization. Every society has its basic myths, its “traditional” values, its prejudices and sacred cows. Throughout most of human history these values have been vigorously enforced through social, religious, and political coercion. Racism is perhaps the oldest and most common feature of paleo correctness.

This is not to say that paleo correctness is all bad. Every clan or nation needs a certain amount of paleo correctness to survive, both to maintain internal cohesion and to repel foreign enemies. Moral skeptics are not likely to be first in line to plug the leaking levee with sandbags, or to volunteer for military service.

On the other hand, the danger of excessive paleo correctness is obvious. Paleo correctness can easily become dogmatism and a threat to freedom. This danger is no less present in democracies, as Alexis de Tocqueville recognized when he described the tyranny of the majority.

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Alexis de Tocqueville

Political correctness is potentially more dangerous than paleo correctness for precisely this reason. You expect the defenders of paleo correctness to be dogmatic, intolerant, and opposed to free expression. They make no bones about it.

Political correctness, on the other hand, is closed-mindedness posing as open-mindedness, intolerance posing as tolerance, dogmatism posing as skepticism (I stole this last phrase from Prof. Arthur Melzer, who used it to describe moral relativism). Thus, there is a certain element of deception to political correctness. It punishes free expression while pretending to champion freedom.

Political correctness came on the scene in the wake of the social and political upheavals of the 1960s, as liberal baby boomers came to power and started to codify and enforce the new norms that had replaced the old. The foremost—and most controversial—description and critique of political correctness is still Allan Bloom’s The Closing of the American Mind.

What Makes Political Correctness Dangerous

The problem with political correctness was that it sought to impose a rigid liberal orthodoxy in place of the old orthodoxy. Its adherents sought to enforce it with an almost religious zeal. Anyone disagreeing with its tenets was treated as a heretic to be punished and ostracized. If you were against gay marriage, for example, you were not just wrong, you were a bigot expressing a view that was no longer permissible. You might as well be defending the institution of slavery.

Naturally, conservatives heartily rejected political correctness, and in some ways even benefitted from using it as a foil. But how did the left respond to the rise of political correctness? Some denied that political correctness was a real phenomenon, suspecting it was just a bogeyman invented by the right, but this view was not realistic. I was a student on a predominantly liberal northeastern college campus in the early 1990s, and I can attest that political correctness was real, as the rest of America would gradually learn.

Others on the left acknowledged the existence of political correctness but denied that it was a problem. They embraced the new dogmatism as a good thing. But these people were never really “liberals” in the true sense. These were post-modern types more likely to read Nietzsche and Foucault than Locke and Mill. (The story of how the left came to embrace Nietzsche, the most right-wing of the great philosophers, is told in Bloom’s book.)

So how did true freedom-loving liberals respond to political correctness? Some simply cowered. They knew deep down that political correctness ran contrary to liberal values, but they were too fearful of offending the new orthodoxy to speak out against it. But some took a stand against political correctness, recognizing that it was a dangerously illiberal doctrine. Within the universities, Prof. Harvey C. Mansfield, Jr. has been an especially compelling critic of political correctness.

Of course, as political correctness made its way out of universities into American culture at large, the backlash was inevitable. At the risk of pointing out the obvious, the reaction against political correctness reached its peak this year with the selection of Donald Trump as the Republican presidential candidate.

The Peak of the Backlash

Republican primary voters were fed up with political correctness. For them, it was not enough for a candidate to be conservative (could you get any more conservative than Ted Cruz?), or merely to criticize political correctness. They wanted someone who would give political correctness the middle finger.

Trump fit the bill perfectly, both in style and substance. His most enthusiastic supporters were not looking to replace political correctness with freedom and tolerance. They wanted to double down on paleo correctness. (The phrase “double down” has virtually become a cliché as applied to Trump, yet it fits his style perfectly and therefore must be used.) And Trump did not disappoint.

But the paleo correctness advanced by Trump is a new, meaner variety, untethered from the moderating forces of civility and chivalry previously associated with “traditional” community values. Men of my grandfather’s generation had their prejudices, but generally they behaved like gentlemen. Now, not only is it ok to embrace your prejudices, you don’t have to pretend to be civilized about it. You can stoke the fires of traditional prejudice while simultaneously telling crude sexual jokes with Howard Stern.

This reinvention of paleo correctness is of course the wrong answer to political correctness. The problem with political correctness is its rigid dogmatism. Just as the answer to the old dogmatism was not to replace it with a new dogmatism, the answer to political correctness is not to embrace an even more prejudiced version of paleo correctness. Freedom and tolerance, not threats to loosen the libel laws, are the right antidotes to political correctness. Similarly, the antidote to the hyper-sensitivity of political correctness is civil disagreement (and a healthy sense of humor), not hurling even cruder insults. In short, the answer to dogmatic liberalism is true liberalism.

This is not necessarily to say that liberalism is the highest philosophical expression of the truth about human nature and politics, but good luck trying to build popular support around say, Aristotelianism. Considering the modern dangers of totalitarianism and nuclear weapons, liberalism will have to do.

So What Does This Have to Do With Lawyers?

Lawyers in particular have a special role in defending individual liberties and tolerance. If Trump somehow succeeds in imposing a religious test for entry into the country, we know who will be the first to challenge it. Just ask the general counsel of the New York Times. He was the one who responded (here) to Trump’s threat to sue for reporting—reporting!—that two women made some very specific allegations of sexual assault. Ultimately, rights like free speech and religious freedom—and yes, even the right to bear arms—mean little if they are not legally enforceable rights, and enforcing legal rights requires lawyers.

But what kind of lawyers will defend the unpopular or persecuted? The legal profession is unique in having a very specific ideal that is embodied in a single fictional character. His name is Atticus Finch. He is the personification of defending individual rights and the rule of law against the forces of prejudice, bigotry, and lawlessness. Liberalism is uneasy with the ancient notion of virtue, but Atticus Finch’s liberalism is his chief virtue.

Part of what makes Atticus Finch a compelling ideal is that he is essentially apolitical, and therefore he can appeal to lawyers across the political spectrum. He is not an outside agitator, nor is he a community activist. He has no apparent political agenda. He makes no claim to be a Thurgood Marshall taking on a test case as part of a larger movement. He is simply a small town lawyer who does his job by standing up for what is right and defending the rights of a man who is the victim of community prejudice, i.e. paleo correctness. Politically, Atticus could be liberal or conservative or anything in between; we never find out because it is irrelevant to the story. (Yes, we do learn he’s an excellent shot, but in the 1930s even Democrats still shot guns in the South, so that doesn’t really tell us anything.)

Whatever happens in the presidential election tomorrow, political correctness will still be a problem, and the backlash to political correctness will still be a problem. America will still need liberalism, properly understood, we will still need lawyers, and we will still need Atticus Finch.

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Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. 

These are solely his own opinions, not the opinions of his firm or clients.