By Kenneth S. Gallant | 34 U. ARK. LITTLE ROCK L. REV. 113 (2011).
This article is a response to an article by Pearce and Wald’s article dealing with incivility in the practice of law. The author questions whether incivility is a unitary concept and critiques two points made by Pearce and Wald. First, “civility” and “incivility” are complex concepts that are much deeper issues than mere politeness or individual interactions. In order to address the problems of public and professional discourse today, one must separate out the problem of civility as impoliteness and personal insult from the problem of incivility as exclusion from the ability to participate in civic discourse.
While the author agrees with Pearce and Wald’s description and most of their application of “relational self-interest,” he disagrees with them on some points. The author asserts that Pearce and Wald push some ideas further than their current formulation will carry them. He argues that Pearce and Wald’s system fully works only where all person and groups are actually and fairly included in the governing polity and this is not always the case. The author argues that Pearce and Wald’s theory of group self-interest as a cure for the ills of public discourse needs more development. The author disagrees with the suggestion that issues of exclusion are raised mostly by the left to argue that there is no such thing as the public interest, only autonomous group interests. The author further disagrees with Pearce and Wald’s attribution of ideas of autonomous group self-interest to certain groups that do not fully reflect what these groups have actually done.
Secondly, the author disagrees with Pearce and Wald’s description of where we have been and what this says about where we need to go. The author asserts that there has never been a civic paradise, in America or anywhere else. The author asserts that, while the debate today are louder and about smaller changes, the debates of the past were at least as harsh then as they are now. Furthermore, these louder debates are not bad for democracy. From civil conflicts of the past, new communities were built. In hindsight we can see that there were tools to dig ourselves out of those conflicts, we simply cannot see such tools today because we have not yet rescued ourselves from these conflicts.
The author agrees with Pearce and Wald’s idea that relational self-interest can and should be applied to lawyers and that lawyers can model vigorous but honest disputing for other lawyers and the public. The author identifies the break-up of legal specialties into groups of lawyers who only practice on one side of the specialty as a recent source for the abandonment of relational self-interest of lawyers as a group.
Finally, the author discusses the fact that there are times where lawyers must appear to be uncivil to others.