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Public Law & Legal Theory


The Flemish painter, Pieter Bruegel, portrayed in his artwork men relieving themselves, cripples begging, and peasants toiling—as well as butchery and the gallows. In his masterful work, The Civilizing Process, Norbert Elias revealed how the “late medieval upper class” had not yet demanded, as later generations would, that “everything vulgar should be suppressed from life and therefore from pictures.” For centuries now, defining incivility has been intimately connected with social rank, class status, political hierarchy, and relations of power. The ability to identify and sanction incivility has been associated with positions of political privilege—and simultaneously has constituted and reinforced political power. This, I fear, remains true today: defining incivility in political discourse continues to be a political strategy that is deeply embedded in relations of power. In the aftermath of the Tucson shootings, there have been renewed calls for greater civility in our political discourse. Although at a personal level, I favor civil discourse as a wiser path, I recognize that it is inevitably a political strategy that comes more easily to those who already have an audience that is listening or a professional position that affords them greater access to the media and to listeners. I personally prefer an ethic of civility and truth-telling, but am deeply conscious that this may reflect a certain privilege, and that same privilege chastens me from urging others to be more civil in their discourse. It suggests, at least to me, that we should be cautious about telling others how they should speak.



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