Contrary to those who say we needn’t debate what has been resolved, the
need for public debate arises from the nature of political persuasion itself. Persuasion is a slow accretion of reasons in the public consciousness. Reasons in support of a proposition and in opposition slowly become present for thinking in the memory of society as a whole. Despite its steady nature, however, persuasion is not gradual in its observable effects. People need to hear the same arguments repeatedly before they make conscious steps to change their minds, then they suddenly shift. Every debate is simultaneously a rehearsal (of old ideas) and an exploration (of new ideas).
That is why the mindset that confuses the need for debate with the validity of one of the sides in debate is as much an impediment to social progress as those who refuse to entertain new ideas altogether. It’s untrue that debate arises from a need to resolve a given issue; rather, decade is a vehicle of persuasion. The mindset that opposes this says in effect that (regardless of whether the refutation is understood by everyone) no debate is needed where there exist effective arguments against the refuted side of the debate. This is like thinking that once one has gotten out alive, there is no further need to go back into a burning building to rescue others. Never mind that the building is still half full of people — it is frightening and dangerous to go back. It might even feel unfair. Nevertheless we have a duty of care to those who remain unmoved to engage them.
In common law, societal expectations (eventually) determine legal expectations. The interpretation of laws and the laws themselves change to reflect changing standards in duty of care. For example, the eighteenth century conception of torture of POW’s was much more limited than it is today. More familiarly, municipalities monitor typical traffic flow and adjust the speed limit (higher or lower) based on average or modal speeds. Here is the Nevada department of transportation recently doing just that:
https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2FNevadaDOT%2Fvideos%2F1383546958349396%2F&show_text=0&width=560 Like glaciers, the law grows and recedes in the crevices of public life based on people’s behaviour and changing social norms.
At the same time, the final forum for the examination of societal expectations is a court of law. When disputes arise between people, we expect that our most determined, strongly-felt moral judgements (“in the situation, you clearly ought to have done X and your having done”) will also find validation in law.
Yet it often happens that one or another of our firmest expectations are a product of grotesque social conditioning that a judge of the law will find disgusting – shallow or petty expectations of our fellow citizens that common law precedent has long expunged from consideration at law. For example, recently a dude decided that his irritation with his date’s using her phone to text message during their date was grounds for the dude to sue his date. Here is a video brief:
I think this is because (despite widely circulated reporting on salacious lawsuits) there’s generally no mechanism for reintegrating findings at law back into societal expectations. Indeed, to limit their liability, lawyers seem loathe to casually share or volunteer findings of law with the lay public based on the worry that such a digest will be understood as “legal advice”. Daytime reality TV courts do more to emphasize the personality of the judge than the character of the common law. For their part, courtroom dramas are obsessed with murder (their investigation and prosecution); worse, they often reproduce and exacerbate popular misconceptions about the law.
This is a problem, because the lay public needs to be “in touch” with the legal system so that we can gauge whether our most strongly felt societal expectations are plausible to the system of justice we’ve established, which we must ultimately depend upon to resolve disputes.
For now, my only suggested solution to this problem is that we need more people to be court watchers (go in person to watch public trials and hearings at the courts). Or perhaps we need a way of broadcasting trials that respects the parties’ privacy interests.
Democratic deliberation is like a theatre play on repeated showing. People choose their parts in the play by adopting one of the various arguments available. Once everyone is tired of seeing the same play (hearing the same arguments be met with the same counter arguments), we make a collective decision to not reenact the play (revisit its arguments) if for no other reason than sheer boredom. This decision is crystallized as policy. This estoppel arrangement can only be maintained, however, so long as we remember the play’s synopsis: If we forget how it went, we may need to return to its stage and play it out a few more times to remind ourselves of its acts.