I don’t normally like to take topics “ripped from the headlines,” but I have to admit a certain amount of sympathy earlier this week for Rudy Giuliani, one of Trump’s many lawyers, who was caught out last week declaring that “truth isn’t truth” on one of the many endless news talking head shows. The soundbite was, without question, bad for the President; but it also wasn’t wrong. Don’t get me wrong: Giuliani is defending a fascist, and his cause is abominable. But we can find value in the statements of those who are fighting a lost or even ignoble cause; and I think that we should open ourselves to statements which are worth considering even when they come from people who are on the side of evil. It gets back to the notion in recent posts that artists without the concept of goodness, who exhibit only immoral actions, can still create works which we have to consider as containing beauty. I don’t like the fact that they can create beauty but I have to acknowledge that they still do so.
Giuliani was saying – in a lousy way – that truth, under the law, consists of those statements which courts accept as truth, and they do so under rigourous procedure and typically only after extensive discovery and cross-discovery and challenge. Once “facts” are accepted they are, in the eyes of the law, Legal Truth – subsequent appeals courts accept that truth as read, even in light of subsequent “facts” which seem to overturn said truth. Appeals are usually limited to challenging the application of the law or procedure, or the way in which truth was determined through discovery (or lack thereof), or in extremis can argue that the truth accessible to the original court was unduly constrained, but they can’t reject the “truth” as the court originally determined it. The courts exist as a closed system, and that is part of their elegance and, really, their impartiality. We live in a world of events, not truths; events are not always obvious and are not always known, but for a civil society to assess – to judge – the rightness, or more narrowly the legality, of outcomes, it needs a process by which “events” can become public enough to warrant inclusion in a judicial record, and thus be eligible for consideration in determining social outcomes of rightness or wrongness.
The press and we as individuals regularly confuse legal or civil or public understandings of truth with actual truth, but that’s understandable too. We experience events and those events become endowed with personal meaning; we can’t, and moreover we shouldn’t want, to disassociate the meaning we attach to events with the events themselves, at all. I recently met an oral historian, who records personal recollections of “what really happened” in the past, and it reminded me that events of any sort – but especially public events – are a collection of personal experiences which in their entirety do not in any way correspond to our post hoc understanding of those events. We miss the relationships – of love, or revulsion, or common shared hobbies – between protagonists and antagonists in the events that define our world (Watergate, the civil rights era, the development of the Internet, you name it). Oral history reminds us of the fact that what is recorded, what we distill into “meaning” – and which by extension forms the underpinnings for our interpretation of blame and credit, fame and infamy, the worthiness and unworthiness of those involved – is so incomplete and poor that it barely is worth the veneer of “actuality” that we – or our great-great-grandchildren – will assign to it.
The richness of our existence depends on attaching to those events all of the cross-functional, cross-correlated impacts of the other events we experience, but we’ll fail – inevitably, because we only have access to the events that we become aware of, which is always a limited subset of what actually occurred. The best we can hope for is to live in a personal world where we remain open to the idea that the warp and woof of events and connections in our lives can be open to being further re-understood by subsequent events, and subsequent possible interpretations, such that we live as an open tapestry, not a slowly closing rug which with every passing day and week and year becomes a completed fabric that holds no hope of change. But that’s not the function of law, or indeed the function of any other social institution. We come together to weave a fabric of a temporary kind of certainty, which we then use to help guide us in making the decisions which will create the events of the future; we can burn that “certainty” whole cloth in the future, but the law, in the function of the courts, exists to make rugs and tie them off.
It’s not only the law. We construct similar frameworks in most every area of our existence, especially what we normally term morality. We usually conflate morality with a notion of right and wrong, but that’s not what I mean when I talk about moral philosophy or the purpose of this site. I accept, however, that most people hear the word “moral” or “judgment” and view it in light of our current social imaginary. But I want to be clear: for me, morality is simply how we decide to relate to other people. It’s not about how other people prefer certain things, or about the relative value of our preferences versus those of others. It is not about establishing truth claims; in fact, my notion of morality rejects the idea that we can establish absolute truth claims. What I think confuses people when I talk about this is that essence: I’m not looking for truth in morality. I’m looking for a system of discussing competing truth claims and the demands that puts on us as moral actors, but more than that, I’m looking for a system which allows competing truth claims to exist, and even more than that, embraces the idea that such competing truth claims do, in fact, exist, separate and irreconcilable, and should exist comfortably. The only “absolute” claim, really, is that we have a duty to support one another in exploring those truth claims. The only immorality, by extension, is to claim a specific absolute truth; that breaks the entire system. Unless we are completely open – even as we espouse, or prefer, or really truly believe in a Kierkegardian leap of faith or a religious statement of absolute knowledge way, a specific point of view – we act immorally because our closure to the actualities we are not aware of and may never be able to directly experience effectively prevents others from being able to feel that their experience is acknowledged as real to them. We may be driven to complete belief, but the only moral act is to allow others to think differently without prejudice or constraint – and conversely, the only immoral act is to constrain or reject without debate another’s view.
Judgment, on the other hand, is natural. It’s natural because we will have our preferences, and our biases, and some of us may have our realms of absolute faith. We will judge from that perspective, although some of us may recoil from the idea of saying we “judge” (my mom always gets sensitive when my father or I say “you’re judgmental,” which is a sure sign we’re spot on – and she’s not the only person who is the same way). And that gets me back to Giuliani’s point. Judgment stems from an acceptance of a particular brand of truth. We all absorb knowledge of events and, given our understanding of them, assess which events are “true” and which events as described are “not true” because they are characterized poorly, or because we believe the account of the event to be inaccurate or false, or what have you. Law is the space which we create as societies – and there are multiple societies – to evaluate different statements of events to determine what is “true” for civil society and the resolution of conflict. The truth that exists within each legal system may be different from other legal systems; both in process of discovery, and determination of truth, different systems may in fact contradict one another.
It’s uncomfortable, but nevertheless truth in a legal context is not truth in an actual context. Truth in the actual, real, “what-actually-happened-when-being-able-to-access-the-thoughts-and-comprehensive-actions-of-everyone” sense may be – and as an historian, I’d argue is really – impossible to determine. So Legal Truth doesn’t try to pretend that it establishes Real Truth. It simply assembles a set of procedures – often involving the subjective assessments of judges and juries who make deterministic outcomes, who are not held accountable for their determinations because the system understands that what they are doing is solely designed for use within the closed system of the law, regardless of the fact that the law has external consequences of death, loss of freedom, loss of status, loss of everything for those caught within its web, but with no choice but to do so – to determine Legal Truth. Legal Truth then is used to figure out the outcome of punishment or exoneration – not forgiveness, not atonement – within a set of rules not that far off from the rules of a board game such as chess. Or maybe like Sorry, where the shuffling of the deck of cards represents the random selection of the jury that so follows the rules on the cards.
Giuliani is right but he didn’t say it well because, well, he isn’t the greatest rhetorician – Legal Truth is not truth. There is no complete truth, and Legal Truth exists because we have to assemble some collection of “truths” to shove through the rules of civil society. We need to divine a temporary, immediate, and acceptable because driven by an agreed upon process “truth,” simply to keep the world of human beings running without giving it up to the gun and the “truth” of whoever is richer, prettier, more violent, more willing to kill and maim and destroy, who can determine the “truth” via rules of hate. The rules can – and I’d argue should – be far more subject to dynamic change than they are. But we will never discover the kind of absolute truth that the press aspires to reporting in the events of the past. We will never have access to complete Truth at all, except the very narrow lived truth of our own lives which itself is incomplete by virtue of our biases in memory and emphasis. In that light, we have to accept that our truth isn’t truth either. Truth is just our personal temporary construct, designed to allow us to get to another moment where we’ll know (hopefully) more, and in that moment by thus more able to discern what is really valid in making better decisions in the future. We also, however, have to be open to the idea that the truth we’ll discover will show us in a poor light. I killed my dog, which is the truth. Yes, I put him to sleep (or more accurately, paid someone trained to do so to put him to sleep), and I employed a socially acceptable, medically endorsed method of killing him. But I still killed him. I need to be open to accepting a future judgment on that score as much as I can accept the arguments that say I was doing the right thing. Truth, in my instance, is no truth.
Trump has clearly violated all sorts of laws – but that’s within a closed system with objective rules, even if he needs to remain an unindicted co-conspiritor by the nature of those rules. I also think he’s an abominable human being who makes my killing of Gordy trivial by comparison. But that’s not capital T Truth. Even if Giuliani’s soundbite was atrocious, and even if his morality was off because his paymaster’s existence is to deny others the ability to express themselves, he was right to remind us that truth as we talk about it in a legal context, in the context of our own actions and lives, isn’t the same thing as the truth we aspire to when we use the word. Truth exists in context, only. Truth to us, as human beings with our own contexts, with our own associations of reality with events, which can never be compared with full equivalence, is never the whole story, is never absolute. That doesn’t make morality subjective – but it does make our experience of reality open to interpretation and incapable of real comparison. Thanks, Rudy, for reminding us of that. Even if your soundbite simply reminded us that your employer was an inveterate liar.