Ofrit Liviatan is a lecturer on law and politics at Harvard University’s Department of Government, the author of a political novel Anything But Steady, and the Director of Harvard College’s Freshman Seminar Program. Liviatan holds a Ph.D. and M.A. (with distinction) from the Fletcher School of Law and Diplomacy at Tufts University and an Israeli law degree. She was admitted to the Israel Bar and practiced law in Israel, specializing in constitutional, criminal and commercial litigation. Liviatan’s research interests include: law and politics; tensions between legal theory and practice; the role of legal systems in the accommodation of diversity; and religion and state.
Our conversation has been edited for length and clarity.
You began your career as a practicing attorney but have evolved to writing and teaching about the tension between laws as written and laws as they play out, understanding that gap, and devising ways to address the division it creates. Could you explain the transition and your current body of work?
The reason I went into law is I thought it would be a tool to change the world and to be able to become an agent of change. What I realized is that law is a limited structure to do that. As I have become more of a socio-legal scholar, I have come to understand that even in constraining structures, agents of change have the ability to restructure structures.
Today, what we see as law in books is not necessarily law in action. We have the letter of the law, but how the law is implemented is very different. That gap is the kind of detective story I’m interested in: finding out why structures are put in place, how they are being implemented, and potentially how can we change them to make them better.
Why does the gap exist? Aren’t laws explicit in their intent?
We are social beings, and we live in divided societies, which is part of what we are going to discuss in the [Lexington Lyceum event on] civic engagement. Because we are social beings, we try to put into law what we think is the good version of life not necessarily the just version of life — specifically our good version of life, right? And we keep fighting about this.
So, if there is a gap, how effective can laws be in bringing about social change?
It’s a very interesting social dynamic in the United States captured in a book by Gerald Berg called The Hollow Hope. People hope and try to get their beliefs into laws constantly, even though it doesn’t deliver. That is what fascinates me — why is this image of the law continuing when we know that it doesn’t do that? When we know that it’s not delivering what we think about what is just, what is moral, what is all these things?
We have an image of the law called Lady Justice [based on the Greek goddess Themis], a statue that has three symbols [characterizing our understanding of the law]. One is a blindfold, one is a scale and the third is a sword [signifying lack of bias, impartiality and the power of the law respectively]. But of course, what we know from social science is that judges are not blindfolded. They have biases. They’re humans. They have beliefs that impact what they think. And the balancing is never objective, because as humans we are not objective. We are driven by our motives and biases and other things. And of course, the implementation [the sword] is not there either because the court is limited in its ability to bring about change. Yet we continue to believe that Lady Themis is just that. I am very interested in why we continue to think that.
Are there other models we should consider?
One of the most important takeaways for me in democratic politics is “losers’ consent.” You know we focus on winners all the time. We focus on how to win. But what we don’t really focus on is that if the loser doesn’t accept the win, it becomes a very destructive force. It can bring down a democracy. We have to reach compromises. That is the function of politics. We just can’t get everything we want. Once we understand that, we have to reach out to the other side.
The other takeaway is that in order to persuade, you have to go beyond your echo chamber. You can’t persuade by saying, I have a right, and you have a right, because everybody thinks they have the right.
What does that mean in a town like Lexington?
Lexington is a small community that lives together and where you know a lot of people. It’s a better [context in which] to facilitate a conversation where people feel included — even though they might not be getting what they want. For instance, even though the school won’t teach the books that you want or might teach a book that you don’t want, you can have a larger conversation that maybe the political system in the United States [as a whole] is currently not able to deliver.
Ireland, for example, has become a world leader in Citizens Assembly. They’re now advising other countries on how to do that. Lexington is a really good place to establish this kind of deliberative, democratic process for the reason that we live in a small town and we know our neighbors and we want to get along.
Where would you begin that process? And what would it require in terms of citizen engagement?
There are ways to think about creating ground rules for transparency, for fairness, for equality, for respect, for efficiency, for collegiality, for all these things. That’s how you provide an engagement in the town on a topic that is polarized. There are ground rules to do that, that have been implemented in these kind of so-called citizens assemblies. Lexington is a very good example because it’s a microcosm of a place where long-term relationships need to be kept. You’ll meet your neighbor at Peet’s coffee tomorrow, right? Or you’ll meet them in Star Market. That ongoing relationship is a very big advantage to reaching across the aisle, to creating trust, because we are trying to solve a problem for our town. We all want to solve it together.
Soon after you published your first novel, Anything But Steady (in 2022), you were quoted as saying that storytelling has a role to play in addressing political divides. Could you explain that?
I am a student of divided societies, and I understand changing heart and minds is extremely difficult, especially when you hold very strong positions on something.
In a polarized society people are in a form of debate. They’re not listening to the other side; they’re advancing their own point of view. Think about the last debate you’ve been part of. You said your position, and you kept trying to convince the other side of your position. Fiction allows you to hold that judgment. For instance, if you are a unionist in Northern Ireland and you read about a nationalist, you are only reading a book about it. You don’t hold judgment that you might in a nonfiction way. Fiction gives you an ability, in fact, to feel the other side.
Anything But Steady is actually [what] I call fraction because it’s fiction about facts. Everything you read in the book is true, but nothing is real. You tell a story and you let the reader make their own mind up on it. That is a very powerful tool for divided society, because the first thing people [typically] feel [when confronted with someone who holds a different opinion] is that, “oh my God, they’re trying to change my mind on something.” And, in return, I am thinking, I can’t change my mind on this. This is part of me, this is my belief. I don’t want to change my mind. I want to stay in my position. But fiction allows you to move from there. It’s a very impactful, powerful tool that way. In a divided society, the conversation that can’t take place as part of a debate can still take place in your mind, where you can feel the other side and know why they are making these kinds of choices and understand that in a very, very personal way.