The Virtue of Ordered Conflict: a Defense of the Adversary System

• Publication year: 2021

79 Nebraska L. Rev. 657. The Virtue of Ordered Conflict: A Defense of the Adversary System

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David Barnhizer*

The Virtue of Ordered Conflict: A Defense of the Adversary System

TABLE OF CONTENTS

I. Introduction................................... 657
II. The Idea of Ordered Conflict................... 660
III. Imperfections in the Adversary System.......... 663
IV. The Role of Law in Coping With
Conflict and Social Change..................... 672
V. The Adversary System in a
Complex American Democracy..................... 677
VI. A Period of Intensifying Social
Conflict and Search for Identity............... 687
VII. Social Despair and Acquiring Meaning
Through Joining A Micro-Community.............. 694
VIII. How Doctrine Helps Shape and
Balance our Political System................... 700
IX. Doctrine as a System and Structure............. 704
X. Conclusion: Democracy, Change, and Conflict.... 706

I. INTRODUCTION

We live in an explosive moment, during which our traditional sense of community is in the process of `disintegrating.'(fn1) We know where we came from, but not where we are going. Much like the Athenian `democracy' described by Aristotle, ours had originally been restricted to white male property owners, and this had a profound impact on the shape, texture, and fairness of the resultant system.(fn2)

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Interest groups not part of the dominant system were excluded from participating in the processes of power and governance other than in subservient roles. There has been significant movement toward the inclusion of disparate voices in our political system by which power and opportunity are allocated, but it is a transition that is far from complete even as we begin the twenty-first century. An inevitable consequence of this greater inclusiveness is that we have entered a period of profound disquiet in which new voices have arisen from all directions to demand shares of social goods they feel have been wrongly denied or to which they feel entitled. It remains an open question which of the dynamic `micro-communities' of interest that have emerged as cause and consequence of the opened system are capable of surviving or whether there will be a reaction sufficient to suppress or reconfigure some of the competing agendas. One undeniable point, however, is that the terms of social discourse that had historically been restricted to a relatively narrow band of dominant interests are unlikely to again exist in the United States.

In The Leviathan, Thomas Hobbes described six factors that lead to the weakening, and even the dissolution, of a political community.(fn3) Hobbes' factors are:

1. The belief that every private man is Judge of Good and Evil actions.

2. The belief that whatever a man does against his conscience, is sin.

3. The belief that Faith and Sanctity, are not to be attained by Study and Reason, but by Supernatural Inspiration or Infusion.

4. The belief that he who has the Sovereign Power is subject to the Civil laws.

5. The belief that every private man has an absolute propriety in his goods: such as excluded the Right of the Sovereign.

6. The belief that the sovereign power may be divided.(fn4)

My underlying thesis is that American society is in increasing danger of falling victim to the tendencies against which Hobbes warned, and that we need to understand and deal with the ultimate implications this holds for our political community. Otherwise, we risk ending up with a severe case of ideological balkanization that will undermine and weaken our social system. My concern is that we are well on the way to a state of ideological civil war. If we succumb further it will mean a political culture in which there is little real communication, but only destructive vilification, jockeying for political advantage, and a refusal or inability to make or accept the compromises and limits that are critical aspects of a working democratic society. Even though dealing with these potential difficulties is important, the simple truth is that we would be wise to aim at strategies that seek to mitigate the conflicts rather than pursue approaches that seek to extinguish competing views and values of which we disap

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prove. This is why ensuring widespread access to the adversary system with its formalized rules of conflict is essential-essential for virtually all positions and claims, not simply the most currently popular or politically powerful.

The profound import of the changes we are experiencing is difficult to overstate. Many of the effects are being felt in the expanding demands for rules and order being imposed on the legal system. Alan Hunt argued that `[t]he central problematic of juristic theory has been to provide a socially persuasive-that is relevant to a particular sociohistorical situation-account of the grounds of legitimacy of the existing legal order and through that of the existing social order.'(fn5) Yet at the point where we most need a `socially persuasive account' we are in an increasingly intense situation of dispute and conflict over what should be the terms of that account.

In analyzing the lamentable conditions he witnessed emerging in Europe, Albert Schweitzer observed that we face one of the most critical challenges in our history.(fn6) He warned that the sheer magnitude of what we are experiencing represents a unique situation.(fn7) If this warning is correct, our history may provide less guidance in finding answers than we would like. One of the most critical differences Schweitzer and others have perceived is captured in his description of the rise of ever more sweeping and pervasive institutional control over our lives. While institutions have always played key roles in shaping our lives and culture, the expansion of their dominance, capability and persuasiveness, and the lack of positive behavioral values within the primary secular institutions have combined into a profoundly dehumanizing and inescapable force.

In terms of understanding how we should deal with the social transformation we have been experiencing for more than a generation, Schweitzer argued:

[N]o historical analogy can tell us much. The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit . . . by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history.(fn8)

It is important to understand the implications of Schweitzer's threepart analysis. The troubling difference he identifies is being powered by not a single isolated factor but the powerful combination of dehumanizing institutional control with the enhanced techniques provided by our `persuasion machinery.' Added to this is the lack of deep and 660

keen critical thought and the reliance on fads, stereotypes and unreflective political passions that have coalesced into a system that seems incapable of being effectively managed or engaging in honest discourse. That is the context in which we are attempting to construct a socially persuasive account strong enough to guide our difficult choices. The problem, however, is that we cannot construct a substantive moral account on which enough of us can agree. Given this reality we must more than ever be willing to submit our disputes to mitigation and partial resolution through the processes of the adversary system. We are caught within the dynamics of a culture whose primary characteristics are conflict and change. For the foreseeable future we must rely on the authoritative processes of the adversary system as a central device by which that conflict and change are managed.

II. THE IDEA OF ORDERED CONFLICT

A premise developed in this essay is that ordered conflict is a necessary, productive, and inevitable part of our society and that it is implicit in the idea of ordered liberty. James Madison recognized the need to balance competing interests in his analysis of factious groups. Madison's insight rests at the center of my argument. In Federalist No. 10, Madison set out the idea of faction in the following words:

By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.(fn9)

Madison described two `cures' for faction. One is to `destroy the liberty' that allows it to bloom, the other is to give `to every citizen the same opinions, the same passions, and the same interests.'(fn10) He concluded that both `solutions' are impractical. The truth, Madison argued, is that the `latent causes of faction are . . . sown in the nature of man, according to the different circumstances of civil society.'(fn11) Factions are natural and even necessary. The adversary system is the mechanism by which we balance the inevitable and often healthy disputes between factions. As our political system has become increasingly complex and factious the adversary system's processes of ordered conflict have become even more vital. If the truth be known, most of us would prefer the noise and irritation of contention to the silence and subordination of tyranny.

Ordered conflict is a desirable element of a free and diverse society, not some lingering social disease that should be eradicated. There is a virtue as well as a necessity in ordered conflict that serves vital social purposes. The virtue of ordered conflict arises from a combination of

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the release of social tension resulting from the use of ritualized systems of dispute resolution and by the pressurized infusion of social needs and...