Wednesday, November 06, 2013

Framing as Opinion Instead of Judgment

I teach legal research and writing every fall, I've been doing it for about 5 years, now. One of the things that I must consistently train out of my students, and out of myself, is the tendency to equivocate and fail to actually state a position as a position, in favor of stating an opinion, or preference.

You can either say "I have a problem with XXX," or you can say "XXX is wrong." One is a statement of your personal opinion or preference. The other is a judgment. Preference-framing (I just made that word up) is a tactic we use, especially when unsure of the response of our listener, of minimizing the statement as a threat to the listener's worldview.

(You'll have noticed by now that women get to do this a lot. Because a woman who dares to say something as blindingly obvious as rape is wrong without wrapping it up in personal opinion or feeling, and words like "may" and "could" and "some" to be as non-threatening as possible, can, will, and does promptly get threatened with it.)

Amongst legal writers, we are less likely to say "I have a problem with XXX" but quite prone to shifting the subject of the sentence from I (or an implied I, since we almost never say I in legal writing) to some court (or other decision maker) that made a statement to the effect that XXX is wrong. When we do that, we practice a different, but similar, distancing mechanism, which is also implicitly a minimizing mechanism, because observing that a court said something lacks the power - is minimized in the same way as if you say "I have a problem with sexual assault at conventions" rather than "sexual assault at conventions or anywhere else is wrong" - of an authoritative moral judgment or statement of principle (legal or otherwise).

Statements of principle have power that statements of preference do not.

This is a problem for legal writing, which must, above all else, be clear and direct. It is imperative that we speak plainly because law is the tool by which we humans forge ourselves into distinct, moderately harmonious, communities. We don't all worship the same gods, but we do follow the same law. (Or are expected to follow the same law.) Lives are on the line, in law - therefore always make your case as powerfully as you can.

As I noted, this is properly a problem in all communication, not just legal writing.

We must all be on guard against our equivocating tendencies. Do not shy away from saying something is wrong, if it is wrong.[*] Otherwise, those around you may think you don't mean it to apply to them.

[*] Unless you must to protect your own safety, and rest assured I am intimately familiar with situations where that is true, but a discussion of such threats and responses to them is outside the scope of this post.

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