The Tyranny of the Subjective

Hyper-subjectivity is threatening our most essential social and legal norms

We are living in bewildering times socially and politically. One reason for this is surely the unprecedented number of lives each of us encounters on account of exponential developments in communications. The early 21st century — perhaps specifically its second decade — will, I suspect, be remembered for the centrality of the subjective narrative, the so-called “lived experience.”

There is nothing wrong, per se, with a flourishing of narratives. We all have our stories to tell and, now more than ever, we have the means through which to tell them. We must, however, stay vigilant to the ways in which the flourishing of this aspect of the social ecosystem impacts other areas. When the subjective narrative takes on a kind of sacred truth status, its increase in power necessarily entails a relative decrease in the power of other lenses through which to view the world.

Ryan Huber recently argued in these pages that the emphasis we now put on personal experience in the context of political activism, such as the role high school students are playing as political 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 the subjective narrative is not a phenomenon limited to the political sphere; it now permeates the entire framework through which we have traditionally mediated our competing narratives. Politics, journalism, academia, science, and law are all affected. In short, any institution that has inherent within it the accommodation of competing perspectives is undermined by a paradigm in which the subjective “lived experience” is sacred.

Diminished in the process are the meta-values of our polity which have traditionally enabled us to transcend — as far as is possible — our differing subjective experiences. Foundational principles such as audi alteram partem (listen to the other side), the presumption of innocence, proportionality, empiricism, and even the rule of law all must bow to the sovereignty of the “lived experience.”

George Berkeley, Atticus Finch, and Pontius Pilate

That we are all, in effect, imprisoned in our own subjective worlds — as lead actors in dramas in which everyone else we encounter simply has a supporting role or bit part — is a realization which has long since taxed philosophers.

The depth of our epistemological isolation is illustrated by the position taken by Irish philosopher George Berkeley (1685–1753), who held that we cannot prove the existence of the material world, since, given the perceptive systems we possess, there is no way for us to come into direct contact with it. Everything we observe is mediated through our senses, which means all we can ever really establish is that our perceptions exist.

Not many have subscribed to Berkeley’s overall picture, but he was undoubtedly right to see the centrality of the subject in all this. A consequence is not just that our perceptive systems mediate the picture we form of the world, but also that other minds remain inaccessible to us.

Atticus Finch, through his advice to Scout, offers us one of the more helpful routes to escape from our epistemological isolation:

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.

Of course, Harper Lee did not intend Finch to be taken literally here. Yet she was pointing to a mechanism by which subjects with differing experiential bases might nevertheless put themselves in positions to adequately render moral judgments.

This is not just a matter of private evaluation. In fact, within our legal framework, we’ve introduced procedural norms through which our competing narratives can be mediated.

Take for instance the institution of the trial. By parsing a multitude of subjective experiences through the machinery of rules of evidence and rules of procedure we produce an “objective” outcome which, generally speaking, society is content to accept. It does not purport to produce The Truth, for as Pilate astutely noted, “What is truth?” However, it does give us a mechanism, a form of dispute resolution, which enables us to live together in community.

Prioritizing 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. Instead, it is driven, at least partly, by a concerted effort to give preferential emphasis to voices which have traditonally been marginalized or whose narratives describe victimization. The changes are, therefore, very much tied up with identity politics and intersectionality.

Just as there is nothing wrong in principle with a proliferation of narratives, there is nothing wrong with a growing awareness of ways in which society has operated unjustly. On the contrary, whenever injustices are detected, they are capable of being addressed; we can’t deal with what we don’t think is there.

At the same time, claims made by a member of a historically marginalized group, or by a victim of wrongdoing, do not possess an elevated truth status in virtue of that association. These claims cannot be unassailable, they cannot render all other considerations insignificant.

To seek to address injustice through hyper-subjectivity is seriously misguided.

Audi Alteram Partem

In considering the ways in which a culture of hyper-subjectivity is undermining our ancient meta-values that support objectivity, let us begin with audi alteram partem, the Latin for “listen to the other side,” or “let the other side be heard as well.” This is arguably the most foundational principle of justice we possess. It is the bedrock of our legal and political systems, and is indispensible to good journalism and authentic academic work.

Audi alteram partem is of ancient provenace. It is, for instance, intrinsic to Aeschylus’ play The Eumenides, written in the 5th century, BC. In the play, the goddess Athena insists upon a trial for Orestes who is accused of murder. The format necessitates both parties putting forward their side. Athena persuades the Furies, the deities of vengeance who were pursuing Orestes, to accept a legal process rather than vengeance; she decrees that now and forever the court of judges will exist to serve the people.

The Furies pursuing Orestes for vengeance

It is not hard to see how audi alteram partem came to distinguish between a civilized social order and a pre-social free-for-all. Try taking a pair of squabbling pre-schoolers and insisting on only listening to one side of the story. The unlistened-to-child will be irate with a sense of injustice — not because she knows the Latin phrase audi alteram partem but because that phrase articulates a deep seated and ancient principle of justice which we intuit from a very young age.

It is nevertheless a principle which is frequently having to give way in order to honor the sanctity of “lived experiences.” The premise behind safe spaces and no-platforming is, literally, the exact opposite of audi alteram partem, albeit with a benign motivation, namely to protect subjective narratives from the “violence” of opposing views. It is what Jonathan Haidt, writing in the Atlantic, has termed “vindictive protectiveness.”

For academia, of course, this undermines the very cloth out of which it is cut — the weave of thesis, antithesis, and synthesis. The idea of an academic seeking to insulate himself from contrary opinion ought to be preposterous, but unfortunately no longer is.

Consider the furor last year following publication in the journal Third World Quarterly of an article by Bruce Gilley entitled “The Case for Colonialism.” The subsequent outcry led the publisher to thoroughly investigate the peer review process the article was subjected to. 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.”

No doubt, as with any academic article, there were flaws in the author’s reasoning and analysis of evidence which could be utilized to write a response. Indeed, some suggestions were made that the article was weak from a scholarly perspective.

The point, though, is that the appropriate scholarly response is to write a rebuttal. Instead, the paper’s opponents sought a retraction, which represents a drastically different approach to dealing with a “problematic” thesis. References were made to the article being an insult, being brutalizing, and raising issues of student safety and a safe campus. Censorship rather than the back-and-forth of scholarship prevailed.

A similar incident happened earlier in 2017 when an article by Rebecca Tuvel in the feminist philosophy journal Hypatia entitled “In Defense of Transracialism” led to outrage on the basis that it “enacts violence and perpetuates harm.” A majority of the editors subsequently put a lengthy apology on Facebook for the “harms” the article had caused, to include the fact that it compared the “lived experience” of trans people with that of a white person who had adopted a black identity. As the author noted, “the last place one expects to find such calls for censorship rather than discussion is amongst philosophers.”

What Tuvel’s and Gilley’s articles had in common was that they pursued theses some pockets of society no longer think can be rationally explored. That’s not because they concern topics that we’ve already fully explored; rather, it is that we should not advance these theses out of respect for people’s “lived experiences.”

The thought seems to be that subjective experiences are dishonored, or somehow impinged on, by discussion and analysis of the broader subject matter.

If the academic approach is no longer acceptable within some areas of academia, then it will surely struggle outside that domain. Such was evident with the James Damore Google memo which was, essentially, an attempt to bring an academic angle into a workplace discussion on gender, by citing relevant literature in the field of psychology.

Whether he got the science right was itself a matter of debate by people within the field. However, as Peter Singer noted, whether he got it right or wrong was not the issue; rather, the question was whether a Google employee ought to 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 say what he said. And he was — legally, Damore faced no obstruction. But I’m referring to the norm in the social space, beyond its role within our legal architecture. A number of responses to Damore went beyond claiming he got the facts wrong or that his analysis was misguided — they seemed emotionally unsettled by its very existence.

Here is Yonatan Zunger’s reaction that he published right here on Medium:

What you just did was incredibly stupid and harmful. You just put out a manifesto inside the company arguing that some large fraction of your colleagues are at root not good enough to do their jobs, and that they’re only being kept in their jobs because of some political ideas. … I need to be very clear here: not only was nearly everything you said in that document wrong, the fact that you did that has caused significant harm to people across this company, and to the company’s entire ability to function.

Unless something is so unreasonable that no reasonable person could countenance it — in which case it is unlikely to pass a peer review process anyway, or to even have enough credence to be controversial in the first place — it ought not be taboo to engage in debate about it.

This is particularly the case when those seeking to engage in debate are drawing on empirical evidence. As Peter Singer said of Damore’s memo: “[I]t is not some twisted, crazy view. There are serious articles, published in leading peer-reviewed scientific journals, supporting it.” A worldview which seeks to un-anchor us from empiricism is anything but progressive.

Using censorship to protect the narratives of people who have suffered or have been discriminated against is ludicrous. For one thing, such debate does not invalidate people’s experiences; they are what they are regardless of what anyone else says. For another, 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. All those subjective experiences are consistent with academic analysis of the broader subject matter. The real undermining of those narratives comes when they are used to justify censorship.

Audi alteram partem, as well as being relevant to academia and public debate more generally, is obviously central to a well-functioning legal system. The Anglo-American adversarial legal system (as opposed to the Continental inquisitorial one) is literally audi alteram partem codified. It too is vulnerable, however, to the idea that some arguments ought not to be put forward lest offense be caused.

Consider here the same-sex marriage cases which came before the U.S. Supreme Court in 2015. None of the leading law firms — which get first dibs on Supreme Court cases — was willing to represent the side arguing against same-sex marriage. The lawyer who did take the case on, John J. Bursch, was experienced in Supreme Court practice, but took the case independently of his firm which “declined the representation.”

Why were there elite lawyers who did not want to be associated with the case? A New York Times article on the issue offers 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.”

The implication is that representing a client by arguing against same-sex marriage would somehow be disrespectful and detrimental to a diverse culture.

One would hope that the best talent from the best law schools would recgonize the centrality of equality of arms to a well-functioning adversarial legal system. And further, that they would recognize the necessary distinction between what a lawyer’s personal beliefs are and the arguments she submits on behalf of her client to a court room. While respecting people and the ways in which they differ are no doubt important values, it is not at all clear that they should override audi alteram partem, or that respect and diversity are best served by being willing to represent only one side of an argument.

If the best talent from the best law schools is not willing to stand up for the fundamental norms underpinning the very system in which they are seeking to make their living, then I don’t know who will. Same-sex marriage could well be entirely uncontroversial a century from now, a total non-issue. What will not be a non-issue is the need for both sides to be heard equally before a court of law if justice is to be served.

Picking and choosing, on ideological grounds, whether to represent someone is not an option for barristers in England and Wales who are subject to the cab-rank rule, which 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 the antithesis of 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.

Without such a tradition being codified, however, it is a principle which is protected only by common sense and the committment of lawyers to the integrity and fairness of their own profession. In a era of online mob rule, such protection is simply not enough, particularly when the economic angle is considered. It is very easy now to organize boycotts of businesses deemed ideologically unsatisfactory.

The Presumption of Innocence, Proportionality and the Rule of Law

Another norm which is indispensable to justice but which becomes problematic when the “lived experience” is sacrosanct is the presumption of innocence. A recent move towards “victim-centered investigations” in the criminal justice realm no doubt flows from a place of wishing to soften the prosecutorial experience for victims of sexual abuse, because most people who make accusations of sexual abuse have, in fact, suffered sexual abuse. However, there is a huge disctinction between most and all and that is where and why the presumption of innocence comes into play.

The Center for Prosecutor Integrity has listed concerns about the erosion of the presumption of innocence, including a document from 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.” It is as if placing too much emphasis on investigation would be improper in light of the victim’s narrative.

The erosion of the presumption of innocence is particularly pertinent 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.

Another fundamental principle of justice which needs careful consideration in the era of #MeToo is proportionality. Proportionality is a criterion of fairness and justice across 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, of course, to the apportionment of punishment for crime. Like audi alteram partem, proportionality is so fundamental that it, or at least its absence, is intuited even by small children.

Proportionality has ancient roots in the concept of lex talionis, that is, the law of retaliation. It can be found in the Code of Hammurabi but perhaps has its most famous instantitation in the Hebrew Bible as the eye for an eye principle. Although the idea of “an eye for an eye” sounds harsh to modern ears, the point is that it is an eye, and no more than an eye, for an eye. An upper limit is set which prevents society collapsing back into unlimited vengeance and vendettas.

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 at play in any jurisdiction which 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 are there to ensure there is 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 them. There is, therefore, both a horizontal and a vertical dimension to how proportionality works in sentencing.

Hashtag justice struggles to make the distinctions necessary to give effect to the principle of proportionality. Instead, inappropriate touching is put into the same category as the most henious rape, 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, i.e., the notion that we are subject to laws, not to the arbitrary whim of people with 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 rule of the mob, albeit in digital form. Consequently many accused people nowadays get nowhere near a courtroom before their HR department has taken care of things. The standard response to accusations of any kind of inappropriate behavior seems to be summary dismissal. It’s unlikely that this is because the employer lacks faith in the criminal justice system, but rather because of a fear of what the social media repercussions might be for insisting that the legal process run its course.

But Shouldn’t We Embrace This Era Of Reckoning?

Some might say that we are living in exceptional times in which the injustices of the old order are being called out and challenged. Staying fully focused on people’s “lived experiences” is the means by which we work towards justice. If being progressive means a little bit of censorship here, a little less proportionality there, then so be it.

That argument fails to recognize that justice is a function of objectivity, not subjectivity. Think of the trial in To Kill A Mockingbird. It was unjust because it prioritized the subjective narrative of Mayella Ewell, a white woman, over that of Tom Robinson, a black man. The trial suffered from an excess of subjectivity, not an excess of objectivity. Atticus was the hero because he — like Athena 2.5 millennia earlier — insisted that justice required that both sides of the case be fully heard, i.e., he insisted on an objective approach.

Atticus’ children watching the trial of Tom Robinson

In his book The Moral Arc: How Science Makes Us Better People, Michael Shermer explains how the significant moral progress which humankind has made 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.

While the principles of justice discussed in this article are not perfectly instantiated in our legal systems — they are normative, and we fall short of giving them full effect. (Consider, for example, the distorting effect of money on audi alteram partem.) The move to explicitly disregard them in order to leave unsullied “lived experiences” is, in my view, a noteworthy and detrimental change to our epistemological ecosystem.

Perhaps some see forsaking the values in favor of a preferential option for the “lived experience” as a Machiavellian strategy whereby once the promised land has been reached the ancient values of justice can be reinstated. That is a massive gamble, because the new order is being internalized, and law follows culture, not vice versa. Our fundamental norms of justice are instantitated in our legal framework, because they are part of our cultural framework. The reason we listen to both sides in a courtroom is the same reason we listen to both of the squabbling preschoolers. We mess with these fundamental norms at our peril.

Thomas Hobbes describes the hypothetical, pre-societal State of Nature as being one in which there is neither justice nor injustice, morality nor immorality, because each person is absolutely free to pursue his own self-interest and survival. This extreme form of freedom, though, got people a life which 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 social contract. Under the social contract all are subject to rules, but in so being, are far more likely to flourish. Morality is a function of the social contract.

The 21st century tyranny of the subjective brings us all into a sort of psychological Hobbessian State of Nature. We are absolutely free to insist on the primacy of our “lived experiences” without the need to cooperate or compromise. It is, however, a nasty and brutish way of life, which lacks any sense of justice.

What Ought The Response Be?

We need to recommit ourselves to the values which enable us to live in community. At every opportunity we encounter, from the squabbling preschoolers to the person accused of inappropriate conduct in the workplace, we need to recommit ourselves to ideas such as audi alteram partem, proportionality, the presumption of innocence, and the rule of law. Further, when we find ourselves debating with others we should welcome contrary views as part of the process of discerning the truth, and we should welcome appeals to empirical evidence and the scientific method as being indispensable to our moral progress.

None of this need be a refutation of any individual’s “lived experience.” None of this need “perpetuate systems of oppression” or constitute “harm.” Instead, the above approach it is simply the insistence that in order to flourish in community 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 which our civilization has developed over recent 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 hyper-subjectivity. It is solved by insisting upon the primacy of the objective approach.

An earlier version of this article first appeared in Quillette.

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