Tag Archives: law

The traditional context of critique

28 Sunday Aug 2016

Posted by in German Tradition, Hermeneutics, M.T.S.R., Metaphilosophy, Politics, Prejudices and "Intuitions"

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It was sixteen years ago, in 2000, that I wrote this week’s post. It was a short paper submitted for Francis Fiorenza‘s class on hermeneutics, on the debate between Jürgen Habermas and Hans-Georg Gadamer. I post it (unedited) because it was something of an intellectual milestone for me, moving away from the more radical Marxist-influenced view I had been holding up until that time. I was surprised as I wrote the paper that I found Gadamer’s more traditionalist view more persuasive than Habermas’s quasi-Marxist social-scientific rationalism.

Since it was written for a professor who knows both Habermas and Gadamer well, it assumes some knowledge of the two thinkers (as well as of Hegel, on whom they both draw) and may be tricky for someone unfamiliar with them. References are to articles by Habermas and Gadamer in Gayle Ormiston and Alan Schrift’s anthology The Hermeneutic Tradition (HT), and to the second revised English edition of Gadamer’s Truth and Method (TM).

My sympathies in this debate certainly lie primarily with Habermas. I also find that in many respects Habermas and Gadamer are very close to each other. Nevertheless, overall I find Gadamer’s position the more compelling of the two, because I am convinced by his argument that we cannot ultimately reject tradition.

Authority, tradition, prejudice are certainly unappealing words — although more so, I think, in English than in German, especially in the case of prejudice. (Vorurteil has at least some positive connotations.) Gadamer’s attempt to rehabilitate them feels quite unwelcome to me. Prejudices say that interracial children like me should not exist; authority keeps women in unhappy relationships and out of the workplace; tradition frowns on unconventional sexuality, or in some cases any sexuality at all. What could there be to rehabilitate here?

Gadamer’s answer, of course, is plenty. Continue reading →

On natural law and positive law

03 Sunday Jul 2016

Posted by in Deity, Foundations of Ethics, Hermeneutics, Islam, Morality, Politics, Protestantism, Reading and Recitation, Roman Catholicism

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In the previous discussion of why intellectualism and voluntarism are important, I left out what I think may be the most important aspect of all, one which leaves its mark on our thought today in the modern West. Namely: whether God is an intellect or a will bears directly on the way we think of morality – at least when we understand morality in terms of law, as the Abrahamic traditions all have to some degree.

If God is a will, then that will makes morality: morality is whatever God’s will commands. Continue reading →

Reasons for rights

12 Sunday Apr 2015

Posted by in Analytic Tradition, Deity, Foundations of Ethics, German Tradition, Human Nature, Morality, Politics, Roman Catholicism

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We have seen over the past few posts that while the idea of individual rights is not just a modern invention, it also is far from a universal one. Rights are not obvious or commonsensical. Contra the American Declaration of Independence, they are not self-evident.

Rather, rights need reasons. If one wants to get to the truth of the matter (and not merely to achieve an expedient political deal), it is never good enough to say something should be done for, or not done to, a person “because he has a right to it”. The right itself requires a justification. Sometimes one’s interlocutor already agrees that the person has this right, but in many cases – the most important cases – they do not in fact agree.

This point is easy to lose sight of, perhaps especially in the contemporary United States where the opposing political sides rarely speak to each other. Each side insists it is defending rights: the employee’s right to contraception, Hobby Lobby‘s right to refuse to provide contraception on religious grounds, the fetus’s right to life, the woman’s right to an abortion. But what is in question here – assuming we acknowledge the existence of rights in the first place – is who has which rights. And then we need to provide reasons.

On Leif Wenar’s modern definition, a right is an entitlement. Historically, when William of Ockham articulated a concept of rights that would get increasingly taken up in the years following, it was a potesta licitas: a legal power, a power of licence. Key to a right is an entitlement or licence that implies an obligation of others to respect it.

But who grants the licence, the entitlement, the permission? Continue reading →

The history of rights (II)

29 Sunday Mar 2015

Posted by in Epics, Foundations of Ethics, Greek and Roman Tradition, Metaphysics, Morality, Politics, Roman Catholicism

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Last time I began exploring the history of the concept of rights (as in human or civil rights), through the works of Michel Villey and Brian Tierney. I noted that the concept as we now understand it has its roots in Latin ius, which had a meaning more like law and one’s proper share than like rights. How did this concept become the concept of individual rights that we now have today?

Villey lays the blame (and for him it is blame) on one key thinker, William of Ockham (or Occam). Continue reading →

The history of rights (I)

15 Sunday Mar 2015

Posted by in Analytic Tradition, Greek and Roman Tradition, Morality, Politics, Vedas and Mīmāṃsā

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Is the concept of (human) rights a modern conceit, as Alasdair MacIntyre thinks? To answer that question, it helps to look at the premodern roots of the concept of rights in some detail. The French legal historian Michel Villey has probably done more than any other to help us understand the historicity of the concept of rights – to recognize that the idea of a right as we understand it today is not a human universal, but has a specific history. (Unfortunately, few if any of Villey’s works have been translated into English; even the Wikipedia link above is French only.) Something like Villey’s work probably underlies MacIntyre’s understanding of the history of rights. Still, if we examine the similarly pioneering work of Cornell historian Brian Tierney, we will see that Villey’s claims are at least somewhat overstated, and MacIntyre’s even more so.

The etymology of the English word “right(s)” goes back very far – it is shared not only with German and Dutch Recht but with the word ṛta from the Sanskrit Vedas, denoting the cosmic order underlying the world. But what’s most important in the history of “rights” and related words is not the words themselves but the underlying concept, the one that comes to be expressed in modern European languages as droit, derecho, Recht, rights. That concept begins as a word which is not etymologically related to the modern European words, but which those words all translate and which is the root of modern European thinking about them: Continue reading →

What’s wrong with rights

01 Sunday Mar 2015

Posted by in Foundations of Ethics, Morality, Politics

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Few concepts are more ubiquitous in our political vocabulary today than rights – human rights, civil rights, equal rights. It is a widespread concept even in non-Western thought about politics, let alone Western. We could try to reject the concept, but that would require great effort, intellectual as well as political – for it would necessarily be reactionary, an innovation through conservatism. A literal conservatism would have to accept the idea of rights, given how intricately woven it is into the fabric of our political discourse. We cannot do without it lightly.

Yet few concepts are also so difficult to defend. Rights-based arguments often get nowhere, because the rights asserted are typically in obvious diametrical contrast: the fetus has a right to life, the pregnant woman has a right to control her body, now what? Rights are typically supposed to be something different from utility; they are not the sort of thing one can trade off and weigh. (That is the role they play in the thought of John Rawls, for example, where protecting individual rights takes “lexicographic” priority – that is, always comes first – over maximizing the welfare of the worst off.) So when competing rights are asserted, too often it leads not to reasoning but to combat. Sometimes the combat is judicial, as over the rights declared in the American Constitution; but those only happen to be the rights articulated by one country’s laws at one point in time. The force of the concepts of civil rights or human rights can only derive from them being something higher, truer, than what happens to be one existing state’s law. Continue reading →

Pro-choice humility

09 Sunday Dec 2012

Posted by in Certainty and Doubt, Humility, Morality, Politics, Roman Catholicism

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A little while ago on Skholiast’s blog, Elisa Freschi pointed to an argument from Nicholas Shackel attacking the “pro-choice” position on abortion. Shackel objects deeply to the following claim from the US’s newly elected Catholic vice-president, Joe Biden:

I accept my church’s position on abortion…. Life begins at conception. That’s the church’s judgment. I accept it in my personal life. But I refuse to impose it on equally devout Christians and Muslims and Jews…I just refuse to impose that on others.

As Shackel notes, such a position is hardly unique to Biden. Forms of this position are very common; in many Western countries, they may even be the most common. It is the position one could reasonably call “anti-abortion but pro-choice”. And as far as Shackel is concerned, such a position is ignorant or worse. Continue reading →

Can collectivities be virtuous?

24 Sunday Apr 2011

Posted by in Action, Buddhism, Christianity, Epistemology, Foundations of Ethics, Humility, Philosophy of Science, Politics, Social Science, Virtue

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There’s been a great discussion going on in the comments to last week’s post on humility and science. This week I’m going to focus on only one of the themes mentioned, which takes us in a different direction from that post but is interesting in its own right.

My post recounted Carl Sagan’s claim that although “religions” claimed an ideal of humility, science was actually more humble; I argued that the two were in fact very similar. A comment from Ben acutely pointed out something I had been missing, a way in which Sagan was right that the tradition was different. Sagan, Ben points out, is defending “not the humility of individuals, but the humility of the whole tradition.” Science as a whole is able to admit when it is wrong, in a way that Christianity and Buddhism are not. In a following dialogue, Ben and I agree that science maintains an institutional humility that “religious” traditions do not, though those other traditions likely do a better job of promoting individual humility.

Other commenters took issue with this agreement, however. If you follow the comment threads on this site with any regularity, you will know that Thill and Jim Wilton do not usually agree on very much. But this time, they unanimously condemn the point shared by Ben and myself: “There is a category mistake here,” says Thill. “Traditions cannot be said to be humble or arrogant. Only individuals can be said to be humble or arrogant.”

And this is a question that well deserves further philosophical exploration. Can an institution or a tradition possess a virtue? Can a government be courageous? Can a corporation be honest? Can a tradition be humble? Continue reading →

How not to conduct interreligious dialogue

03 Sunday Apr 2011

Posted by in Christianity, Deity, Islam, Judaism, M.T.S.R., Modern Hinduism, Politics, Truth, Vedānta

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When I taught an introductory religion class at Stonehill, one of my favourite texts to teach was Jon Levenson’s Commentary article, “How not to conduct Jewish-Christian dialogue.” Levenson’s article is a critique of Dabru Emet, a brief statement made by four professors of Jewish studies. Dabru Emet emphasizes the commonalities between Jews and Christians: they worship the same God, seek authority from the same Hebrew Bible, and accept the moral principles of that text.

Levenson responds: wait a minute. For Trinitarian Christians (the vast majority today and for most of Christianity’s history), Jesus is God in a fundamental sense; but for a Jew (or Muslim), to say that a man is God is an idolatry that drastically compromises God’s fundamental oneness and uniqueness. While the content of the Tanakh – the Hebrew Bible as understood by Jews – may be mostly the same as that of the Old Testament, they are read in a very different light. To understand the Tanakh, Jews turn to Mishnah and Talmud; to understand the Old Testament, Christians turn to the New. As a result, the stories of the Hebrew Bible unfold very differently in each – they are even placed in a different order, so that the Tanakh culminates with the rebuilding of the Temple in Jerusalem, while the Old Testament ends with a prophesy heralding the “coming of the Lord.” And this isn’t just a matter of arcane scriptural study: it affects one’s ethics, one’s idea of the good life. Jewish ethics have been traditionally focused on following God’s laws and commandments as revealed in Torah, Christian ethics on following Jesus’s example – or even more so on faith in him and his saving grace.

Now my interest in Levenson is not in the particulars of Jewish and Christian traditions, since I identify with neither tradition. Rather, what I deeply appreciate is his criticism of Dabru Emet‘s method. Such documents, Levenson argues, “avoid any candid discussion of fundamental beliefs,” and “adopt instead the model of conflict resolution or diplomatic negotiation.” Continue reading →

Of constitutions and the Constitution

20 Wednesday Oct 2010

Posted by in Greek and Roman Tradition, Politics, Protestantism, Roman Catholicism

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Good news this week: after a difficult, expensive and often harrowing process, I had a successful interview with the American immigration service, so I am now a legal permanent resident of the USA (holding a “green card”). While we waited for the interview, I was reading my notes on James Doull‘s Philosophy and Freedom, and realized it had given me a much better understanding of the country in which I have settled.

One of the more curious features of American political conversation is Americans’ attitude toward their Constitution. In American politics, the Constitution is a scripture, a sacred text; and I do not mean this at all metaphorically or analogically. The Constitution literally is a scripture, for it has the most important hallmark that a scripture has: while the meaning of the text is endlessly debated, the text itself is universally regarded with great reverence and respect. Both of the warring sides of American politics accuse the other side of disrespecting the Constitution (the language used is typically stronger than “disrespecting,” often involving bodily functions of some variety). Some might argue that the Constitution is not a scripture because it is not “religious,” but this is already to beg the question; I have yet to find an adequate reason to distinguish between the “religious” and the “non-religious,” or reasonable way of classifying the two.

This attitude toward the Constitution has perplexed me since before I arrived in the country. Continue reading →