I've chosen to comment on Chapter 9 of Carl Trueman's book, "The Triumph of the
Therapeutic," in two parts.
In part 1, I addressed Trueman's skillful summary in The Supreme Court and Gay Marriage. I'm skipping his argument titled Ivy League Ethics where he devotes nearly ten pages to ethicist Peter Singer and his support of abortion and infanticide. I did not find this part of Chapter 9 as persuasive as the first. Trueman's effort to infuse Singer's Nietzschean ethics with expressive individualism seemed forced.
The third part of Chapter 9, Campus Anticulture, is solid. Recalling his discussion of Rousseau (in my words: "Rousseau identifies the cause of his 'sins' not in the sinful will but in the amour propre--the distorted desire for recognition created by society"), Trueman argues that the purpose of education has gradually changed from learning how to live well in the natural and social (dis)orders in which we find ourselves to learning that all social orders are the result of oppression and that so-called natural orders are merely awaiting the power of technology to reorder them to our likings. The triumph of the therapeutic self.
With respect to education, it is the case that "the changing understanding of selfhood brings with it a changed understanding of what does and does not constitute an assault on the self." (325-26) In other words, freedom of inquiry is no longer ordered to the ends of discovering the true or the good but may instead be seen to be a means of assault on the self. The notion of assault is no longer limited to injury to the body or property (or good name) but becomes "psychologi[zed], something that damages the inner self."
For example, anyone who disagrees with an aspect of LGBTQ+ rights project is deemed bigoted as displayed in the furor around Middlebury College's 2017 invitation to Charles Murray. The psychologization of harm is foregrounded in this context by labeling of those who disagree in terms of phobia. Being tarred with the brush of phobia rules "out from the very start any notion that objecting to the fluidity that marks current notions of sex and identity could be based on any kind of rational reflection." (330) To paraphrase Martin Gurri, any challenge to the tenet of identity is blasphemy.
These brief observations lead to some even briefer comments on the recent revisions to the ABA Standards and Rules of Procedure for Approval of Law Schools. Even though it is a private entity in which membership is voluntary, the American Bar Association is the primary accrediting body for law schools in the United States. The power to accredit is important because many states require graduation from an accredited law school to take their bar exam. And without ABA accreditation, law students do not have access to federally-subsidized student loans. Thus, the private ABA exercises enormous public power.
In February 2022 the ABA House of Delegates approved changes to its accreditation standards 205 and 303. As revised, Standard 205 adds gender identity and expression, ethnicity, and military status to the list of grounds on which a law school may not discriminate in admissions and equality of opportunity. These changes will have little practical effect at most law schools. Revised Standard 205 exempts law schools with a religious affiliation from all its nondiscrimination provisions but "only to the extent" that the United States Constitution provides. In other words, the ABA recognizes that its accreditation standards amount to State action. But in any event, most religiously affiliated law schools will happily acquiesce to the revised non-discrimination rule.
Revised Standard 303 adds a new subsection (c). This should prove more interesting.
(c) A law school shall provide education to law students on bias, cross-cultural competency, and racism:
(1) at the start of the program of legal education, and
(2) at least once again before graduation.
While the Standard does not prescribe the content of such education, official Interpretation 303-6 states that it is the "obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law ..." One presumes that representation of persons or businesses conscientiously resisting application of expanding anti-discrimination rules will not be deemed "unprofessional," with all the negative ramifications such a conclusion would entail.
In light of The Triumph of the Therapeutic, the risk is great that Standard 303(c) education will be cabined by the sensibilities of selfhood. For example, will all questions addressing normative and professional questions about same-sex relationships be entertained? Or will a student (or teacher) who addresses the legitimacy of a lawyer's choice, say, to decline to represent a same-sex couple with regard to estate planning or adoption, be foreclosed because it risks assaulting the identity of another student?
Most incoming law students have been sufficiently conditioned by their experiences in secondary and undergraduate education to know better than to risk the patronizing of teachers or the ire of classmates. More's the pity. One wonders how well law graduates acutely sensitized to issue of identity can function in a realworld™ in which many clients and other professionals have not fully internalized the cult of the inviolability of the psychologized self.
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