We are living in socially and politically bewildering times. One of the reasons for this is the sheer number of other people’s lives we are touched by on account of exponential developments in communications. The early 21st Century – perhaps specifically the second decade of it – will, I suspect, be remembered for the centrality of the subjective narrative, or what has become known as the ‘lived experience.’

There is nothing wrong with a flourishing of narratives, per se. We all have our stories to tell and, now more than ever, the means with which to tell them. We must, however, remain vigilant. The proliferation of this aspect of the social ecosystem impacts other areas, and granting the subjective narrative sacred status diminishes the power of other important ways of understanding the world.

In a recent post for Arc Digital, Ryan Huber argued that the emphasis placed on personal experience in political activism, such as the role high school students are playing as commentators in the gun control debate, comes at the expense of an emphasis on expertise.

An increasingly individual and emotional interpretation of reality has become the norm in public debates and disagreements, as the opinion of experts – with a distinctly different kind of “experience” under their belts – has come to mean less and less.

The primacy of subjectivity is by no means limited to politics. It now permeates the framework through which we have traditionally mediated our competing narratives. Journalism, academia, science, and law are all affected. In short, any institution that exists to accommodate competing perspectives is being undermined by a new paradigm that privileges the subjective ‘lived experience.’ And, in the process, the meta-values which have traditionally enabled us to transcend our differing subjective experiences suffer. Foundational principles such as audi alteram partem (listen to the other side), the presumption of innocence, proportionality, empiricism, and even the rule of law now must bow before the sovereignty of the subjective.

The realization that we are all imprisoned in our own subjective worlds – the protagonists of dramas in which everyone else plays a supporting role – has long taxed philosophers. Some, such as Irish philosopher George Berkeley (1685-1753), have gone so far as to suggest that the material world doesn’t even exist, and that our ‘lived experiences’ are simply played out in our minds. Most of us are sufficiently convinced by the idea of material reality to reject Berkeley’s position. Nevertheless, even materialists are condemned to a life of epistemological isolation which they must learn to think beyond if they are to comprehend anything other than a cacophony of contradictory points of view. As defence attorney Atticus Finch advises his six-year-old daughter Scout in Harper Lee’s 1969 novel, To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view . . . until you climb in his skin and walk around in it.”

On a societal level, we have moved beyond empathy and institutionalized procedural norms though which competing narratives can be mediated. Consider, for instance, the courtroom trial. By parsing a multiplicity of subjective experiences through legal machinery that uses rules of evidence and procedure, a trial strives to produce an ‘objective’ outcome which, generally speaking, society is content to accept. It provides a mechanism for dispute resolution that enables us to live together in community.

However, of late, a variety of ideas have begun to disfigure and undermine the search for objectivity and understanding. Among these is a preference for what have come to be called ‘traditionally marginalized narratives.’ This change to the epistemological ecosystem is not a random mutation, nor is it simply a function of increased use of social media. Rather, it is driven, at least in part, by a concerted and ostensibly well-intentioned effort to privilege voices hitherto excluded, oppressed, or victimized. These changes are, therefore, entangled in identity politics and a progressive doctrine of ‘intersectionality.’

Just as there is nothing wrong with a proliferation of narratives in principle, there is nothing wrong with a growing awareness of historical injustice. On the contrary, this is a positive development; naming a problem is the necessary first step towards addressing it. However, victimhood narratives do not and must not render all other considerations insignificant.

Audi Alteram Partem

Audi alteram partem is the Latin for ‘listen to the other side,’ or ‘let the other side be heard as well.’ This principle is foundational to our understanding of truth and justice; it is the bedrock of our legal and political systems, and it is indispensable to scrupulous journalism and academic rigor. It can be found in texts dating as far back as Aeschylus’s play The Eumenides, written in the 5th Century BC. Orestes is accused of murder and the Goddess Athena persuades the deities of vengeance who were pursuing him to accept a legal process which will allow all sides to have their say. She decrees that now and forever the court of judges will exist to serve the people.

It is not hard to see how and why this principle became a salient part of what we understand to be a civilized social order. Even squabbling pre-schoolers will feel a sense of injustice if a parent or teacher only listens to one side of their quarrel. This is not because they have been taught the meaning of a Latin phrase like audi alteram partem, but because that phrase articulates an innate grasp of fairness which we are able to intuit from a very young age.

It is nevertheless a principle asked to give way to the sanctity of ‘lived experiences’ with increasing frequency. Safe spaces and no-platforming, for instance, may be the product of benign motivations – to protect subjective narratives from the ‘violence’ of opposing views – but they are the antithesis of audi alteram partem. Instead, they are examples of what Jonathan Haidt, writing in The Atlantic, has called “vindictive protectiveness.” This, of course, tears the very cloth from which academia is supposed to be cut – the weave of thesis and antithesis to produce a synthesis of understanding. The idea that an academic or student should seek to insulate himself from contrary opinion ought to be preposterous, but unfortunately, it no longer is.

Consider the furore that erupted last year following the publication of an article by Bruce Gilley entitled “The Case for Colonialism” in the Third World Quarterly journal. The ensuing outcry led the publisher to conduct a thorough investigation into the peer review process to which the article was subject. Ultimately, the article was withdrawn; not because the standards for publication had not been met, but because “the journal editor has subsequently received serious and credible threats of personal violence.”

Author of article on “the case for colonialism” withdraws it after death threats; academics are mostly silent https://t.co/YN2LdTsTlq pic.twitter.com/qnw2wYoYzp — Steve Stewart-Williams (@SteveStuWill) October 13, 2017

As with any academic paper, there were no doubt flaws in the author’s reasoning and analysis which might have warranted a considered and thoughtful rebuttal. Indeed, some critics did argue that Gilley’s article was an example of weak scholarship. But although rebuttal was the appropriate scholarly response, it was retraction at which the social media-driven campaign was aimed — Gilley’s article was described as an insult, brutalizing, and accused of endangering student safety, none of which bears on the accuracy or coherence of his arguments. Censorship rather than the back-and-forth of scholarship prevailed.

Earlier in 2017, a similar incident occurred when Rebecca Tuvel’s paper “In Defense of Transracialism” was published in a feminist-philosophy journal. An apology for publishing it was made on Facebook on behalf of “a majority” of the associate editors following claims that Tuvel’s argument “enacts violence and perpetuates harm.” The editor-in-chief, Sally Scholz, however, stood by it. The article was controversial because, like the Gilley article, it forwarded taboo arguments and conclusions which, it was said, violated the ‘lived experiences’ of minorities.

If the academic method is no longer acceptable within some areas of academia, then it should be no surprise to find it struggling outside of that domain. This was made particularly evident by the so-called Google memo, written by James Damore in an attempt to bring the available academic literature on sex differences to bear on a work place discussion of the company’s diversity initiatives. Whether or not Damore got the science right remains a matter of (academic) debate among specialists. Some said he did and some said he didn’t. But, as the bioethicist Peter Singer noted in an article for the NY Daily News, whether he got it right or wrong was not the issue. The really important question was whether or not a Google employee should be allowed to say what he said.

In a world in which audi alteram partem is a foundational norm, clearly he ought to have been allowed to offer his view, just as Bruce Gilley ought to have been allowed to publish his. If a hypothesis is reasonable enough to pass a peer review process, it ought not to be taboo to debate it. This is particularly important when those seeking to engage in debate are drawing on empirical evidence. As Singer wrote of Damore’s memo, “it is not some twisted, crazy view. There are serious articles, published in leading peer-reviewed scientific journals, supporting it.” Any worldview that seeks to unanchor us from empiricism is anything but progressive.

Using censorship to protect the narratives of people who have suffered or been discriminated against is ludicrous. Debate does not invalidate people’s experiences; they are what they are regardless of what anyone else says. Furthermore, Gilley, Tuvel, and Damore were not saying that nobody suffered under colonialism, or that nobody has suffered on account of being transgender, or that no woman has been discriminated against in the workplace. Those experiences remain consistent with academic analysis of the broader subject matter. But those narratives really are undermined when they are used to justify censorship. Where sympathy is appropriate, a feeling of resentment grows instead, along with concern about the creeping influence of an intolerant and prescriptive ideology dedicated to smothering free inquiry.

We listen to both sides in a courtroom for the same reason we listen to both of the squabbling preschoolers. Audi alteram partem is central to the Anglo-American adversarial legal system and it is therefore likewise vulnerable to the claim that arguments which might cause offense must be disqualified. When same-sex marriage came before the U.S. Supreme Court in 2015, none of the leading law firms was willing to represent the side opposing it. The lawyer who did eventually take the case came from a medium-sized firm in Michigan, which distanced itself from his involvement.

Why wouldn’t elite lawyers take on the case? An article in the New York Times article offered this explanation:

“Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

One would hope that the best talent from the best law schools would recognize the centrality of equality of arms to a well functioning adversarial legal system. And, furthermore, that they would recognize the necessary distinction between a lawyer’s personal beliefs and the arguments she submits on behalf of her client to a courtroom. While respecting people and the ways in which they differ is no doubt important, it is not at all clear that this consideration should override audi alteram partem, or that respect and diversity are best served by representing only one side of an argument. If the best talent from the best law schools are not willing to uphold the fundamental norms underpinning the system in which they wish to make a living, then I don’t know who will.

This could not happen in England and Wales where a ‘cab-rank rule’ obliges a barrister to accept any case appropriate to his or her experience, seniority, and area of practice, irrespective of:

The identity of the client.

The nature of the case to which the instructions relate.

Whether the client is paying privately or is publicly funded.

Any belief or opinion which [they] may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

The cab-rank rule is named after the tradition that the driver at the front of a queue of taxicabs should take the next passenger seeking a ride. It is therefore antithetical to discrimination. It protects people in need of a lawyer (or a taxi) and it protects barristers from being personally linked to the cause or conduct of the clients they represent. In countries without such a codified tradition, however, it is a principle protected only by common sense and the commitment of lawyers to the integrity and fairness of their own profession. In an era of online mob rule, this protection is simply not enough; it is too easy to organize boycotts of businesses deemed to be ideologically unsatisfactory.

The Presumption of Innocence, Proportionality, and the Rule of Law

No less indispensable to justice, but ‘problematic’ when the ‘lived experience’ is sacrosanct, is the presumption of innocence. A recent move towards ‘victim-centered’ criminal investigations is intended to soften the prosecutorial experience for victims of sexual abuse. The price of such a shift in emphasis is negligible, it is claimed, because most people who make accusations of sexual assault are telling the truth. However, there is a big difference between most and all.

The Center for Prosecutor Integrity has listed its concerns about the erosion of the presumption of innocence, among which is a document issued by the Department of Justice and Police Executive Research Forum which instructs investigators to hand “control of the process back to the victim” and allow the complainant “to request certain investigative steps not be conducted.” The implication is that placing too much emphasis on investigating or verifying a victim’s claims would be improper. The erosion of the presumption of innocence is particularly troubling in the era of #MeToo, because the welcome flood of genuine stories of abuse is no doubt polluted by a few malicious and opportunistic accusations.

Proportionality, meanwhile, is a criterion of fairness and justice applicable in all areas of the law, from self-defense and the use of military force, to the adjudication of constitutional and human rights, as well as the apportionment of punishment for a given crime. Like audi alteram partem, proportionality is so fundamental that its absence may be intuited even by small children. It has ancient roots in the concept of lex talionis, or the law of retaliation and can be found in the Code of Hammurabi. But perhaps its most famous formulation appears in the Hebrew Bible as “an eye for an eye.” Although this idea sounds barbaric to modern ears, the underlying point was that only an eye, and no more than an eye, must be forfeited for an eye taken. An upper limit is set which prevents society collapsing back into a limitless cycle of vengeance and vendetta.

In the modern era, proportionality was first developed in depth by the German courts. The German principle of proportionality, Verhaeltnismaessigkeit, went on to heavily influence European law, and in particular the European Convention on Human Rights, where it is used to balance the rights of the individual with the interests of the community. More generally though, proportionality is central to any jurisdiction that seeks to bring coherence to sentencing by ensuring that the punishment fits the crime. It is obviously not an exact science, but detailed sentencing guidelines exist to ensure consistency between what person A gets for stealing a loaf of bread and what person B gets for stealing a loaf of bread, and moreover, that Person C, who has committed multiple violent burglaries, gets substantially more than a bread thief. There is, therefore, both a horizontal and a vertical dimension to proportionality in sentencing. But hashtag justice sometimes strives to muddy or obviate such distinctions. As we saw during the furious #MeToo debates, inappropriate touching was often put into the same category as the most heinous kinds of rape and sexual assault, along with everything in-between.

Audi alteram partem, the presumption of innocence, and proportionality all sit within the broader framework of the rule of law – the notion that we are all subject to the same laws, and not to the arbitrary whims of those in power. The role that social media has come to play in the meting out of justice represents an erosion of the rule of law. It is, in a sense, a return to a kind of mob rule. Consequently, many accused people nowadays get nowhere near a courtroom before their Human Resources department has passed judgement. The standard response to accusations of any kind of inappropriate behavior seems to be summary dismissal. It’s unlikely that this is because employers lack faith in the criminal justice system, but rather because they fear what the social media repercussions might be for insisting that the legal process run its course.

An Era of Reckoning

To the above, some might reply that we are living in exceptional times in which the injustices of the old order are being called out and challenged. Staying fully focussed on people’s ‘lived experiences’ is the means by which we work towards justice. If the cost of progress is a little bit of censorship here, a little less proportionality there, then so be it.

But that argument fails to appreciate that justice is a function of objectivity, not subjectivity. In To Kill a Mockingbird, the subjective (and false) narrative of a white woman was privileged over that of Tom Robinson, a black man. The trial suffered from an excess of subjectivity, not an excess of objectivity. Atticus Finch was the hero because he – like Athena, two and a half millennia earlier – insisted that justice demanded that both sides of the case must be heard. He understood and insisted upon the importance of an objective search for truth.

In his book The Moral Arc: How Science Makes Us Better People, Michael Shermer explains how the moral progress made by humankind is attributable to abstract reasoning, rationality, empiricism, skepticism, and a scientific methodology. In short, it is a commitment to objectivity which ensures that, as Martin Luther King proclaimed (citing the 19th century clergyman Theodore Parker), “the arc of the moral universe is long but it bends towards justice.”

Our fundamental norms of justice are instantiated in our legal framework, because they are part of a cultural framework that has produced demonstrable progress. Perhaps some are happy to forsake this approach in favor of ‘lived experiences’ secure in the belief that, once the promised land has been reached and the scales rebalanced, ancient values of justice can be reinstated. Not only does this do nothing to correct the injustices meted out in the meantime, but it risks allowing the new order to be internalized. The cost of such a shift would be steep.

Thomas Hobbes described the pre-societal ‘State of Nature’ as one in which there is neither justice nor injustice and neither morality nor immorality, because each person is absolutely free to pursue his own self-interest and survival. The price of this extreme form of freedom, however, was a life Hobbes famously described as “solitary, poor, nasty, brutish and short.” And so people decided that the rational thing to do was to cooperate; to give up some of their liberty in order to form a mutually beneficial social contract, under which all are subject to the same rules, and are consequently far more likely to flourish. Our understanding of morality and justice are functions of this social contract. The 21st Century tyranny of the subjective returns us to a version of the Hobbesian State of Nature – a nasty and brutish way of life in which we are absolutely free to insist on the primacy of our ‘lived experiences’ without the need to cooperate or compromise.

We need to recommit ourselves to the values which enable us to co-exist as communities. From the squabbling preschoolers to the person accused of inappropriate conduct in the workplace, we need to uphold the principles of audi alteram partem, proportionality, the presumption of innocence, and the rule of law. Furthermore, when we find ourselves debating with others we should welcome contrary views as part of the process of discerning what is true and broadening our own understanding, and we should welcome appeals to empirical evidence and the scientific method as indispensable to our moral progress.

None of this need be a refutation of any individual’s ‘lived experience.’ It is simply an insistence that in order to flourish the ‘lived experience’ cannot be the first and the last word in any dispute. Appeals to ideas such as respect, inclusivity, and diversity are not enough unless they come replete with a procedural framework for dispute resolution to replace and improve upon the framework developed over millennia. Such a procedural framework must be a priori to any person’s substantive, ideological vision.

I am in no way disputing that our societies have operated unjustly insofar as gender, race, sexuality, religion and so forth have ranked higher than capability and content of character in determining life chances. That is not, however, solved by a reliance on subjectivity. It is solved by insisting upon the primacy of the objective approach.

Featured Pic: The Remorse of Orestes (1862) by William-Adolphe Bouguereau

Correction March 19, 2018: An earlier version of this article incorrectly stated that Rebecca Tuvel’s paper “In Defense of Transracialism” had been retracted. The text has been amended.

Elizabeth Finne lives in Norfolk, Virginia. She moved to the U.S. from the U.K. – where she was a government lawyer – 10 years ago. Her interest is in the values and ideas underpinning legal and political systems, with particular reference to the contrasts between the U.S. and the U.K. She is licensed to practice law in both those countries, but spends her days looking after her four children, adjuncting in philosophy, and writing. Follow her on Medium medium.com/@ elizabethrachelfinne or on Twitter @FinneElizabeth

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