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I. Advocacy in the Courtroom
III. Advocacy and Dominant Discourse

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Created: February 28, 2002
Latest Update: February 28, 2002

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II. Advocacy in Public Discourse

Entry by jeanne

Copyright: Jeanne Curran and Susan R. Takata and Individaul Authors, February 2002.
"Fair use" encouraged.

The audience we wish to influence will determine our perspective. If we are planning to convince the audience that we are right, i.e. if we have a specific advocacy to which we must adhere, then that determines how we present our argument. In the courtroom, the defense attorney must be an advocate for his/her client. That means he/she cannot do or say nothing that will harm the client.

On the other hand, you will recall that the prosecutor in the criminal court, is ethically required to be the advocate for the People. That means, that since it should be in the people's interest to discover justice and/or real truth, the prosecutor is charged with taking a balanced perspective, and seeking real truth. Winning is not the prosecutor's job; finding truth and justice are his/her job. But the defense attorney is charge with defending the client as best he/she can. That's a subtle but very real difference.

Now, when we shift our forum from the courtroom to public discourse the perspectives for advocacy change. In the courtroom our objective was to resolve a dispute, or to punish and prevent transgressions of the law. Our audience was the public who must abide by the legal system and who expects the laws to hold. In other words, we recognize the public's expectations for the law, and we do our best to honor those expectations. But our objective in public discourse is different. There are conflicts in public discourse, just as there are in the application of the law. But we do not expect of the public discourse that it solve these problems. There is no need to develop a consensus, for we can in fact agree to disagree.

Our objective in public discourse is to examine in good faith the validity claims of all citizens, to not only hear their validity claims in good faith, but also to lend our expertise at making those claims clear to others so that we can all come to an understanding of what is at issue, that is, what we must agree to disagree about.

Organized religious belief is one of those issues. We read daily of the clash of beliefs between Hindus and Muslims, between Christians and Jews, between Israelis and Palestinians, and so on. Our objective in public discourse is not to decide which set of religious beliefs is "right" or "best" or "truth," but to help each organized religious group find ways of understanding the Other, who believes differently, so that we can live in peace without harming one another, without dominating one another, without "winning."

In Ireland Catholics and Protestants turn on one another. In Israel, Israelis and Palestinians, Jews and Muslims turn on one another. And over the centuries the story goes on and on. Usually with indefensible harm and killing of innocents. In the present day there are claims that organized religion is the root of all evil, that if we would just give up religion, there would be no more war. But then the passionate belief that religion is the root of all evil becomes as impassioned as the arguments over whose right.

I am a teacher. I make no claim to having the ultimate answer. But I shudder intuitively everytime I hear the arrogance of "knowingness," whether that which is claimed to be known is that one or the other religion is "right," or that all organized religion leads to hostility and violence. I like Freire's position: that the circles of certainty we draw prevent any real teaching we might be able to do. I have come to fear the "arrogance" that springs of the "knowingness" no matter what it is they claim to "know."

Public discourse is about advocating an openness, a willingness to recognize the prespective of the Other, a tolerance of the ambiguity that very few important questions have "right" answers, and accepting that condition comfortably.

In the courtroom we want to "win" our case. It feels bad to lose. But if we "win," someone must "lose." That perspective of justice is based on an adversarial climate in which "winning" is all important. Fellman would say that we're compulsive about our need to "win," and that we are willing to harm others by insisting on competitive ranking in which we are determined to rank higher. I agree with Fellman. I believe it's time for a paradigm shift to mutuality. It's time to seek collaboration and to minimize competitiveness. And I believe that most strongly about education. Education is a tool to freedom. Education bestows a greater awareness of both the overview and the local story. And with that greater awareness comes the understanding that all the really big issues we face can be understood from many perspectives.

Agnes asked about the issue of Welfare to Work on Wednesday, as we talked of President Bush's proposal that mothers on welfare should work longer hours, up to 40 hours a week. As I tried to help Agnes phrase her argument, she said to me, "You agree with me, don't you?" Well, you know, I'm not sure about that. I haven't really ever put the question to myself like that. My question is more or less: "If the mother of four children is working 40 hours a week, are the older children forced to assume the tasks she would normally have undertaken? And if they are, what effect does that have on their needs in childhood? Instead of the dualistic pro or con position, I have many positions, according to the structural context in which problem occurs.

And that's what I would describe as the role of advocacy in public discourse. Not looking for a dualistic response of who's right or wrong, but trying to understand the complexities of the fact patterns that really occur in our shared lifeworld.

Habermas, as I understand him, has faith in our ultimate ability to engage in public discourse as equals. I hesitate to accept that. I believe that some of us, lawyers, trained to present validity claims to the best advantage, have skills that the general public has not been afforded. I believe that access to the skills of attitude change and persuasion, so well developed in law and politics, are essential to the effective presentation of validity claims. Seyla Benhabib objects to the application of postcolonial theory to problems that involve "mere racism." The two are, colonialism and racism, two very different phenomena. One reason that she gives is that in racism, the victims at least have a language in which to express their validity claims, while in colonialism, even that is not available to them. As a lawyer, I beg to differ with her. The skills I have been afforded by that training are specific and cannot be acquired by a victim through hard work and motivation without turning that victim to a different agenda from the validity claim he/she wishes to press.

And turning the victim to the study of linguistic and persuasion skills (Think cognitive dissonance.) takes enough of his/her energy that focus is shifted away from the original validity claim, and one begins to invest in the more immediate linguistic and persuasion goal. This has been called popularly co-optation, and is a very real danger. In the process of developing these professional skills, the claimant becomes proud of the new skills, sees himself/herself as "better than" those who do not work hard enough to develop these skills themselves, and arrogance and class enter the equation to muddy up the original validity claim. In law school we were taught "Keep your eye on the ball!"

My own personal addendum to Habermas' faith in public discourse, and in keeping with his fears that the "administered society" has lost many of the public discourse skills, is that those of us with such professionally-trained and/or natural skills should in good faith lend those skills to claimants who need them. For me, that is an integral part of the "good faith" requirement for legitimacy.

That is what I was trying to do in bolstering Agnes' argument on welfare and work. Martins and Tyron, who shared in that discussion, had more experience than Agnes in such argument. And both of them nodded their understanding that part of their honoring "good faith" was to help Agnes make her case. Such help was quite apart from their ultimate vote or conclusion on welfare and work. The public discourse served not to provide that any given claims "won" or "lost" the vote, but to guarantee that through discourse we collectively understood all the perspectives as best we could.

Rose, who was more timid in argument, transferred her understanding of the discussion to her understanding of the importance of hearing in good faith both the "left" and the "right" perspectives, and the extent to which the left or right positioning of the teacher cannot help but affect the presentation of the substantive issue. Because Rose found the left position sympathetic to her own feelings, she had failed to notice that solid and convincing arguments of the right perspective were often missing from her thinking. One important objective of public discourse is to bring to awareness these omissions that we tend to accept intuitively, and never question, omissions that might upset our "knowing" that we are right in the position we thought we had voluntarily taken after all due consideration.