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Tag Archive: Law

The weakness of it is not due to the argument itself but to the condition of the hearer

Posted: Sunday, April 21, 2013 (8:39 pm), by John W Gillis


Published on cnsnews.com last Friday, the Rev. Marcel Guarnizo provides a lengthy response to Bill O’Reilly’s recent dismissal of “Bible thumping” in the public square over the legitimacy of same-sex marriage, including the following comments on the incompatibility of the type of law involved in establishing such a legal fiction with a constitutional order per se:

O’Reilly fails to make clear distinctions. For example, on the issue of religion in the public square, his claim that theological arguments are unacceptable in the public square is meant to indicate that if someone does not have faith in the authority of Divine Revelation, such argumentation holds no sway. This is true.

It is incorrect, however, to grant the further implication that religious argumentation should not be used in the public square. … To presume that the public square is owned [by] or exists because of the atheists of our modern day is historically false and an easy way out of a more complicated debate.

… The clamor for same-sex marriage is symptomatic of but not the root cause of our demise. The eroding of the philosophical and cultural foundations of the West is at the root of the problem. To ignore this is to miss the forest for the trees.

… The argument from faith, being revealed by God is essentially the strongest argument per se. It may not be understood to be so, by those who do not believe in Divine Revelation, but, if God exists and Christian revelation is true, it is undoubtedly the strongest. God does not have opinions, or positions on issues. God is simply Truth. The fact that the argument from eternal law cannot be used with the homosexual lobby, which is markedly atheistic, does not grant the further claim that Divine Revelation is a weak argument. The weakness of it is not due to the argument itself but to the condition of the hearer, who does not recognize Divine Law.

… If Bill O’Reilly believes in Divine Revelation and the divinity of Christ, he surely should realize that theology and reason (philosophy) are simply two different ways of arriving at the same conclusion. Theology and revelation are necessary, even in cases where one can arrive at the same conclusion [by] reason alone, because not every individual has the time or ability to arrive at correct conclusions from reason. Revelation in this sense is a service to the human conscience, for it affords another way for many people to arrive to necessary conclusions, quickly, and without the admixture of error. Revealed doctrine is a service to reason, not an obstacle.

But since Mr. O’Reilly demands "more than Bible thumping," I argue from reason, that homosexuality is simply not a normative inclination in the individual and therefore its existence constitutes shaky ground to make a norm for society as a whole. One has to take a deep breath and depersonalize the issue. We speak at this level when evaluating policy. The question before us is whether the tendency of some men and some women toward a same sex attraction is reasonable grounds to legislate for an entire nation or state.

… Now, when we discover non-normative tendencies, we seek causes. We ask: Why is this non-normative behavior taking place? We don’t start making laws for an entire population based on the non-normative tendencies of a tiny segment of the population. More clinical, sociological, and medical science is needed here, not lawyers and judges acting by fiat to institutionalize in the nation’s law non-normative tendencies of any type. This is, I submit, an unreasonable and insufficient ground for law.

… The problem here is that if non-normative tendencies become the criteria for constitutional or state law, law itself will become biographical. This atomization of law, culminates in the inability for us to have fundamental rights, as human beings. Things are institutionalized after centuries in law and custom, because they are recognized as normative, and, in the case of marriage, as a good for society. The legal institution of marriage is the normalization of that which is de facto normative in man. Marriage institutionalized in law and by religion is the proper effect the fruit of a normative tendency in man. Heterosexual, monogamous unions were not simply admitted into the marriage franchise (to which others now seek entry), it is rather the author that produced marriage as we know it. They have as it were, authorship rights over marriage since they produced the institution.

Creating institutions in law and possibly at a constitutional level, using non-normative tendencies (which are many and vary greatly in our society), as the justification is unreasonable and theoretically unsound.

Equality under the law in this sense is already being assaulted by post-modern philosophy, as unfair. Precisely for this reason, "the notion of "equality under the law," is now seen by many as failing to address the biographical preferences and tendencies of all kinds of biographical groups in society.

If we continue down that path, there will be no end, except the end of what we now know as the rule of law. It is unreasonable to legislate on constitutional order in this fashion.

Although I’m not sure how much of Guarnizo’s far-flung argument addresses the problem with O’Reilly’s libertarian indifference to non-utilitarian aspects of public life, the article nonetheless articulates a number of ideas that rarely make their way into the public discourse on this contrived controversy.

Given the hysterical nature of the thought-policing imposed on the matter (e.g. anyone who disagrees with the idiotic pretenses of the radicals is a “bigot’), it’s good to see some of the underlying intellectual errors exposed, as this piece does in pointing out how the special-interest nature of “biographical preference” law undermines the very basis of lawful order by replacing genuine equality under the law with targeted “rights” meant to benefit the politically well-positioned. Ostensibly advanced to serve the cause of “equality”, these kinds of laws are ultimately tyrannical, precisely because they are irrational, and that which is not rooted in the truth of the nature of things has no capacity to (continue to) exist on its own, and must be propped up by raw power. They are politically dangerous, socially poisonous, and morally unjust.

HT to Ed Morrissey at HotAir.

Same-sex marriage violates the right of the family to protection by society and the state

Posted: Thursday, January 5, 2012 (4:23 pm), by John W Gillis


Quote of the Day for Thursday, January 5th, 2012.

Douglas Farrow, from an outstanding piece in the new (and terrific-looking) issue of Touchstone, entitled Why Fight Same-Sex Marriage? Nail-head, meet hammer:

[W]e should observe also that when a family of some description is founded by a same-sex couple, it is always founded by violating the natural parent-child bond that marriage is intended to nurture and protect. It deprives the child, whether in the same way that divorce does or in some more innovative technological way, of its prima facie right to its own father and mother. But we should notice something else as well, and not merely parenthetically—something too little noticed either by the detractors or by the champions of marriage. Same-sex marriage violates the natural parent-child bond in every family, and the right of the family to protection by society and the state.

How so?

In Rerum Novarum Pope Leo XIII rightly described the family as “a society very small . . . but none the less a true society, and one older than any State,” with “rights and duties peculiar to itself which are quite independent of the State.” This society, “founded more immediately in nature,” is what the Universal Declaration has in mind when it speaks in article 16 of the family. The family’s status as “natural”—that controversial adjective is deployed only in this one specific article—allows it a certain priority over civil society and the state. The latter share an obligation to protect the family, but the family is not at their disposal.

Same-sex marriage dispenses with all of that, however. By excising sexual difference, with its generative power, it deprives itself of any direct connection to nature. The unit it creates rests on human choice, as does that created by marriage. But whether monogamous, polygamous, or polyamorous, it is a closed unit that reduces to human choice, rather than engaging choice with nature; and its lack of a generative dimension means that it cannot be construed as a fundamental building block.

Institutionally, then, it is nothing more than a legal construct. Its roots run no deeper than positive law. It therefore cannot present itself to the state as the bearer of independent rights and responsibilities, as older or more basic than the state itself. Indeed, it is a creature of the state, generated by the state’s assumption of the power of invention or re-definition. Which changes everything.

I have little to add except that I can happily cross “write a short but cogent defense of marriage from an anthropological perspective” off my to-do list – I can simply point people to Farrow’s article, which is far better than anything I would have come up with. Next time some sneering cynic asks you “How is your marriage ‘damaged’ by same-sex marriage?”, share this link. Marriage matters like nothing else matters in human society, and Farrow knows why. And he knows why contraception lies at the root of the breath-taking collapse of the institution over the past century – and especially the past half-century. Required reading for any morally serious person.

The way things are done now makes us importunate, dependent, and increasingly unfit to govern ourselves

Posted: Thursday, May 26, 2011 (11:18 pm), by John W Gillis


Quote of the Day for Thursday, May 26th, 2011.

The always-readable J. E. Dyer, published in the Green Room over at HotAir, on the burgeoning bloat of judicial control over the character and content of America’s social order:

When the law is in proper relationship to the people, the scope of the judiciary is very limited, but actually more meaningful to the enterprise of “good government.”  Today, we have a body of law so huge and burdensome that it has started going 15 rounds with itself on a regular basis, and the judiciary acts as a referee on intricate and inherently political questions of policy.

It is possible to think in different terms, and to conceive of a regimen of law and jurisprudence much more like that envisioned by the Founders.  Americans need to wake up and recognize that accepting the way things are done now makes us importunate, dependent, and increasingly unfit to govern ourselves.

This short article provides a fascinating glimpse into what is threatening to become the perpetual silly season of legal posturing and social engineering by examining a convoluted “environmental” (Cap ‘N Trade) law and related lawsuit in California. Dyer’s concern regarding the foolishness of modern approaches to such problem solving is made all the more poignant by the fact that she’s happy, from a practical perspective, for the imposition of the injunction that provides the jumping-off point for her article, yet she is wise enough to understand, from a principled perspective, at what cost a “victory” obtained in such fashion must come.

“She had no free will’’

Posted: Thursday, December 16, 2010 (11:44 pm), by John W Gillis


Quote of the Day for Thursday, December 16th, 2010:

Local man quoted in today’s Boston Globe, after he and his lawyers completed a successful $152M shakedown of tobacco company Lorillard, Inc., in a suit alleging the company was responsible for his mother’s smoking-related death at 54 in 2002:

“She was addicted,’’ William Evans said today. “Obviously, had she had a choice, she would not have smoked, and the record was clear about that. She made over 50 attempts to try to stop smoking and she was addicted. She had no free will.’’

Had she had a choice? She had no free will?

Is there a more brazen example of the lunacy that has spread its tendrils from the sanctimonious halls of academia into the barrios and slums of the modern underclass? It’s bad enough to not be able to grasp the difference between not having self-control and not having free will. It’s bad enough to go looking for a convenient third party to blame your problems on. But when a society allows this kind of legal larceny to go on, nobody’s means are safe from a clever enemy – and when the government is in on the scam like this, there is no place to turn for justice, except for a crapshoot appeals process within the same system that abets the larceny.

Mr. Evans may be a very rich man today, but the rest of us are just as much poorer – and in more than greenbacks. OK, he’ll probably never actually collect, but the principle of the whole stinking thing still stands…

Subjectivism’s Necessary Appeal to Juridical Power

Posted: Saturday, November 20, 2010 (3:24 pm), by John W Gillis


Quote of the Day for Saturday, Nov 20, from Georgia Warnke, in Justice and Interpretation (MIT Press, 1994):

MacIntyre insists that the "only rational way in which these disagreements could be resolved would be by means of philosophical enquiry aimed at deciding which out of the conflicting sets of premises, if any, is true."  But within the liberal tradition, not only can individual claims to what the good life is for human beings not be understood or appear as validity claims in the sphere of public discussion; the same restrictions apply to the set of assumptions that would be used to support these claims. They too are reduced to subjective preferences. And, since liberal individualism thus denies that any conception of the good or any set of assumptions can be true or false, where conflicts occur they must be resolved by other means.

[…]

MacIntyre concludes that the characteristic mark of liberalism is that it does not seek a real resolution of conflict in genuine philosophical inquiry. Rather, liberalism simply accepts the verdicts of the legal system, verdicts that have been formed through appeals to whatever position in the philosophical debates seems to support them most easily at the time. "The lawyers, not the philosophers, are the clergy of liberalism," MacIntyre claims.

Discussing Alasdair MacIntyre, in Whose Justice? Which Rationality? (University of Notre Dame Press, 1989)

It’s not hard to predict that a cultural philosophical framework of moral relativism will culminate in a system where might makes right, but MacIntyre’s observation has the virtue of showing us how this proceeds in our case, and it is a case of putting the cart before the horse. A legal system needs to be able to draw on a knowledge of the good in order to produce an order of justice. When the lawyers themselves define the “good,” the place of good is usurped by self-interest, and justice is cashed out for political advantage.