Failed Revolutions by Richard Delgado

Author:Richard Delgado [Delgado, Richard]
Language: eng
Format: epub
ISBN: 9780367157630
Barnesnoble:
Publisher: Taylor & Francis
Published: 2020-12-07T00:00:00+00:00

What the Subjective-Objective Debate Shows—and Conceals

Underlying these stylized debates about subjective versus objective standards is a well-hidden issue of cultural power, one neatly concealed by elaborate arguments that predictably invoke predictable "principle."13 These arguments invite us to take sides for or against abstract values that lie on either side of a well-worn analytical divide having remarkably little to do with what is at stake. The arguments mystify and sidetrack, rendering us helpless in the face of powerful repeat players like corporations, human experimenters, action-loving surgeons, sexually aggressive men.

How does this happen? Notice that in many cases it is the stronger party—the tobacco company, surgeon, or male date—who wants to apply an objective standard to a key event.14 The tobacco company wants the warning on the package to be a stopper. The doctor wants the law to require disclosure only of the risks and benefits the average patient would find material. The male partygoer wants the law to ignore the woman's subjective thoughts in favor of her outward behavior. Generally, that's the way it is—the law complies.

What explains the stronger party's preference for an objective approach and the other's demand for a more personalized one? It is not that one approach is more principled, more just, or even more likely to produce a particular result than the other. Instead, we think the answer lies in issues of power and culture. It is now almost a commonplace that we construct the social world.15 We do this through stories, narratives, myths, and symbols—by using tools that create images, categories, and pictures. Over time, through repetition, the dominant stories come to seem true and natural, "the way things are." Recently, outsider jurisprudence16 by persons of color, women, gays, and lesbians has been developing means, principally "counterstorytelling," to displace or overturn these comfortable majoritarian myths and narratives.17

The debate on objective and subjective standards touches on issues of world-making and the social construction of reality. Powerful agents, such as tobacco companies and male dates, want objective standards applied to them simply because these standards always, and already, reflect them and their culture. These actors have been in power; their subjectivity long ago was deemed "objective" and imposed on the world. Now their ideas about meaning, action, and fairness are built into our culture, into our view of male-female, doctor-patient, and manufacturer-consumer relations.18

It is no surprise, then, that judgment under an "objective" or reasonable person standard generally will favor the stronger party. But not always: Rules that too reliably favored the strong would be declared un principled.19 The stronger actor must be able to see his favorite principles as fair and just—ones that a reasonable society would use in contested situations. He must be able to depict the current standards as integral to justice, freedom, fairness, and administrability—to everything short of the American way itself. Notice that when a subjective test would strengthen the hand of a powerful agent or institution, the law will often oblige—as is illustrated by the "intent" tests used in antidiscrimination law.

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