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Publication Date


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Nebraska Law Review


adversary system, ordered conflict, law and society, social conflict


My underlying thesis is that American society is in increasing danger of falling victim to the tendencies against which Hobbes warned, and that we need to understand and deal with the ultimate implications this holds for our political community. Otherwise, we risk ending up with a severe case of ideological balkanization that will undermine and weaken our social system. My concern is that we are well on the way to a state of ideological civil war. If we succumb further it will mean a political culture in which there is little real communication, but only destructive vilification, jockeying for political advantage, and a refusal or inability to make or accept the compromises and limits that are critical aspects of a working democratic society. Even though dealing with these potential difficulties is important, the simple truth is that we would be wise to aim at strategies that seek to mitigate the conflicts rather than pursue approaches that seek to extinguish competing views and values of which we disapprove. This is why ensuring widespread access to the adversary system with its formalized rules of conflict is essential - essential for virtually all positions and claims, not simply the most currently popular or politically powerful.