The eternal now of conservatism (3)

In my previous two posts, I looked at pieces by two conservatives--James Livingstone on gender and soldiering and Justice O'Scannlain on gender and marriage--who both imagine they are basing their reasoning on history and verities of human nature when they are doing nothing of the kind.

Sodom and genocide

In his 2013 lecture, Justice O'Scannlain alludes to the work of Robert George and associates on the nature of marriage, particularly in the context of US Supreme Court decisions such as Lawrence which, in the Judge's words:

struck down a Texas criminal prohibition on homosexual sodomy

The term sodomy, or, as Robert George likes to write, sodomitical, alludes to the natural law interpretation (in fact, perversion) of Genesis 19, the story of Sodom and Gomorrah. The terms invoke killing people for their sexual practices. To use the term sodomy and its cognates is to invoke "the people God wants dead", the people who should be dead--if not literally, at least to any definition of the human.

Ironically, in view of Justice O'Scannlain's hostile invocation of "abstract theory", that is precisely what is wrong with the natural law interpretation of Genesis 19, an interpretation that has since become traditional, at least in Christianity and Islam: the imposition of abstract theory to pervert understanding of the original text. The original rabbinical understanding of Genesis 19, based on oral tradition and close reading of Scripture, was that the sin of the Cities of the Plain was that they were anti-moral: that they actively punished those who looked after the weak and vulnerable. Being struck down by God's wrath for this makes at least some sort of grim sense, especially if Genesis 19 is read as a rape scene attacking that most vulnerable figure--the guest from afar. For a social pattern of stripping the vulnerable of moral and legal protections can go on and on: as the history of the Catholic Church's treatment of Jews and queers demonstrates.

What makes no sense is God destroying entire cities because He thought that butt sex was icky (especially as failure to engage in procreative sex means the "problem" goes away in a generation). But that is where the natural law interpretation of the Sodom story takes us--if only at some violence to the original scriptures. (Attempted rape no more invalidates same-sex activity than it does opposite sex-activity: and God had already decided to destroy the Cities before the apparent attempted rape of His messengers.) It makes entire sense if one's role is to be gatekeepers of righteousness--for then the more bizarre and unexpected the demands of righteousness, the more you need said gatekeepers to tell you what they are.

Thus God "purifies" human society by killing the sexually divergent. As evidenced in the charming Jesus-the-genocidal story in the medieval bestseller compiled by a beatified Archbishop of Genoa, The Golden Legend.  But we really should not be surprised by such a tale being part of Church literature; the terms sodomy and sodomitical explicitly invoke the notion that society is purified by the death of such persons, the "unnatural" committers of treason against the immanent purposes of God's natural order. 

Norman Cohn famously labelled the The Protocols of the Elders of Zion as a Warrant for Genocide. Actually, the original warrant for genocide was the natural law interpretation of Genesis 19: the notion that society is purified by mass murder, by the slaughter of the different-and-vulnerable. Rather than, as in the original rabbinical interpretation, God particularly enjoining moral attention to, and protection of, the vulnerable. Natural law reasoning displaying its dark, and morally impoverishing, side.

Free-floating notions

Robert George and confreres base their arguments on claims about the nature of sex and the nature of marriage. As previously noted, the anthropologically defining aspect of marriage is that it creates in-laws: that is, it broadens kinship connections, it creates wider patterns of social support. That, along with the commitment to pooling effort and resources, is what makes marriage the preferred social mechanism for raising children--hence the anthropologically widespread practice of adoption. But to such natural law theorists, such anthropological evidence does not count. Much of the appeal of natural law theory is precisely the belief that one's immediate apprehension of "the nature" of things is enough of a starting point.

There is also, in such writings, the perennial conflating, via the use of the terms procreation and procreative, of conception with child-raising (the bit marriage is actually useful for); a conflation which becomes bizarre in the significance given to acts of conceptive "form" even when actual conception is impossible. On the other hand, that such acts are in anyway problematised--as George and Bradly implicitly admit in their 1995 paper--is itself a mark of how they make the human dance to a conception of the narrowly physical so that structures of gonads become more important than the purposes of people.

That the approach problematises sexual activity so profoundly comes out when they write of, in said 1995 paper:

acts that might perform on each other's bodies

A bizarre way to express giving another profound psychical and emotional joy. Pleasure, catharsis, bonding, expressing love: these profoundly human things are all imprisoned within the dictatorship of (the form) of conception. An impoverishing of erotic understanding which is also an impoverishing of biological understanding, since animals use sex in nature much more broadly than just conception--and the more cognitively complex the species, the more that tends to be true.

As for the notion that acts non-conceptional in form are an assault on the moral integrity of persons because it is mere instrumental use of oneself and another; that is just another manifestation of th aforementioned impoverished understanding. Not to mention one that would apparently make all soldiering (for example) inherently immoral, as generals regularly use soldiers in a quite instrumental fashion, to the point of expending their lives. The "preserving moral integrity" argument is just an attempt to make more palatable the underlying moral principle that gonads are more important than people. Successful only to the extent that, once again, human experience is ignored--particularly as queer people discover again and again, being open to themselves and others about their sexual nature is the path to psychological (and moral) integrity. 

But, in such natural law reasoning, anything in human psychology, social arrangements or in animal behaviour that contradicts the assertion that the structure of gonads counts more than the purposes, aspirations and experiences of people does not count. It is a particularly striking example of the besetting sin of natural law reasoning--that the conclusion gets to set the ambit of its premises.

Useful for righteousness gatekeeping
Which makes such reasoning very attractive as a mechanism to buttress religious doctrine. As is fairly obvious in George et al talking of an "adequate reason" to have sex, thereby expressing monotheism's perennial problematising of sex that (in monotheism, but not animism or polytheism) separates us from, rather than connects us to, the divine--except via the creative function. Hence the rhetoric about the "unitive" nature of sex that is conceptual in form. 

So, those who fall in love with members of their own sex are not entitled to have sex, except with someone they are not erotically engaged with, but never with someone they are. The structure of human psyches--millions upon millions of them--are subordinated to a pathetically narrow characterisation of a specific organ. Queer folk become just perverted mistakes, natural law theory says so: natural law theory which is allegedly based on the objective facts of human nature and existence, said objective facts excluding the existence of queer folk except as perverted mistakes. Their existence, aspirations, even experience, do not count as evidence.

But, apparently, evidence is not actually required. George et al are very big on the notion of intrinsic value, though they note that not everyone grasps such value:

people who fail to grasp the intrinsic value of such basic human goods ordinarily do not judge them to be valueless. ...

If intrinsic value takes such special understanding to grasp, it seems a very unlikely basis for morality. But a very good basis for justifying the role of gatekeepers of righteousness. But we are not talking of something grounded in anything much:

Intrinsic value cannot, strictly speaking, be demonstrated. Qua basic, the value of intrinsic goods cannot be derived through a middle term. Hence, if the intrinsic value of marriage, knowledge, or any other basic human good is to be affirmed, it must be grasped in noninferential acts of understanding. Such acts require imaginative reflection on data provided by inclination and experience, as well as knowledge of empirical patterns, which underlie possibilities of action and achievement.

Except, as we have seen, great masses of experience and empirical patterns do not count. The conclusion gets to set the ambit of its premises, where experiences and aspirations contrary to those "imaginative reflections" are discounted. Which do not turn out to be very "imaginative" at all, but, in fact, profoundly impoverished.

So narrow as to be not reasonable

It is clear that for Justice O'Scannlain, and for Robert George and his collaborators, by reason is meant what I am aware of and pay attention to.  Since what they say is based on "reason" what they do not know does not count and thy need not enquire into it. So the invocation of reason becomes a commitment to ignorance and to ignoring. Hence being highly selective of whose experience, and whose voices, counts.

Understanding the past requires not imposing our own preconceptions on it. Human nature is that which encompasses all humans, not just a selected subsection thereof. Tradition has to be judged in its context, history is wider than what is congenial or convenient. As is experience. Social arrangements are adaptations to circumstances, not magically grounded in verities of human nature. Merely waving around the words history, experience, tradition, reason, does not mean that you actually understand the first three, or are properly using the last.

And if history is based on a "fixed" human nature, but only some history counts, then those whose history does not count do not get to be part of what defines human nature. They get to be defined as outside the "properly" human.

Robert Livingstone, Justice O'Scannlain, Robert George all mistake historical contingencies for verities of human nature; they all invoke the "eternal now" of conservatism. An invocation far more marked by willful ignorance than understanding.

Given the history and dynamics of monotheism--and natural law reasoning within monotheism--it is not surprising that matters of sex and gender should operate in such a way. (Especially for Catholic conservatives.) But what we want to see can be a very unreliable guide to what is. Pioneer sociologist Emile Durkheim's explanation of the sexual division of labour was remarkably patronising of women:

According to his theory, among the very primitive (both in the distant past and today) men and women are fairly similar in strength and intelligence. Under these circumstances the sexes are economically independent, and therefore "sexual relations [are] preeminently ephemeral". With the "progress of morality," women became weaker and their brains became smaller. Their dependence on men increased, and division of labor by sex cemented the conjugal bond. Indeed, Durkheim asserts that the Parisienne of his day probably had the smallest human brain on record. Presumably she was able to console herself with the stability of her marriage, which was the direct result of her underendowment and consequent dependence.

Apparently, it took a female anthropologist to put the pieces together.  Contrast the above with the key passage in anthropologist Judith Brown's 1970 note on the division of labour by sex:

Women are most likely to make a substantial contribution when subsistence activities have the following characteristics: the participant is not obliged to be far from home; the tasks are relatively monotonous and do not require rapt attention; and the work is not dangerous, can be formed in spite of interruptions, and is easily resumed once interrupted.

There is no necessary connection between what is congenial and what is true. Hence this is what happens when previously ignored or excluded perspectives get to have their say. We learn things and our understanding is broadened. But not if we invoke history, tradition and reason to block doing so under the delusion that the resultant "eternal now" is clear-eyed justification for anything much, beyond a certain smug, ignorant, self-righteousness.

Broadening moral understanding
Jonathan Haidt has argued that conservatives tend to have a broader range of moral foundations than do progressives (pdf). George and his confreres clearly believe that they have a profounder moral grasp than do supporters of same-sex marriage. But one is much more struck by how impoverished their viewpoint is, not merely in the sense of being factually impoverished (though it is profoundly that) but also morally impoverished in the lack of awareness, or active disregard, for the wider human implications of what they argue for.

It is beyond the capacity of  public policy to change human sexuality, but it can easily punish the vulnerable for being different. Treating people as being outside the "properly" human has dire consequences for family dynamics, for human relationships and human lives generally. Hardly surprising, as the point of morality is to permit us to live together in much richer lives than would otherwise be possible: so naturally, reducing the, or excluding from, moral standing entire categories of people blights lives. But if said categories of people are outside the properly human, their lives and experience do not count; at least not enough to change moral understanding.

Which is precisely why the arguments of George et al are losing. Because, in the words of Ghanaian philosopher Kwame Anthony Appiah:

The increasing presence of "openly gay" people in social life and in the media has changed our habits. And over the last 30 years or so, instead of thinking about the private activity of gay sex, many Americans and Europeans started thinking about the public category of gay people.

Or, in other words, that people are more important than gonads. This ongoing shift in opinion may represent a narrowing of what acts are regarded as morally significant, but it represents a broadening of who is accepted as fully human, as a fully legitimate manifestation of the human, as enjoying therefore the full protection of morality and the law. And that is a profound moral advance: not a loss of moral understanding, but an expansion of it.

 [Cross-posted at Skepticlawyer.]

The eternal now of conservatism (2)

Catholic writer James Livingstone (see previous post) is hardly the only conservative writer who sees inherited social arrangements as based in verities of human nature rather than contingent historical circumstances.

Not counting as human

This notion of social arrangements as being rooted in verities of human nature, not the contingencies of history, can have a very dark aspect. At its worst, it can exclude the historically disenfranchised from being regarded as human, or at least, as "properly" human. This dark aspect lingers very close to the surface in a 2013 lecture by US Federal Judge, The Hon. Diarmuid F. O’Scannlain. 

In his discussion of the contemporary implications of Justice Joseph Story's (1779-1845) natural law jurisprudence, Justice O'Scannlain writes of:

the philosophical blindness of abstract theory detached from experience, tradition, and the very nature of man.

What if experience and tradition contradict themselves? Why does not history include the experience of the excluded or repressed? The notion that history, experience and tradition form a mutually supporting triad can only be maintained at the cost of significant, highly selective, editing of both history and experience. The selection processes of history are very far from being morally pure, or morally reliable, hence tradition can be a very dubious guide, especially if circumstances--particularly technology and knowledge--change. If we are to give credence to the past, we need to give credence to all of it.

Justice O'Scannlain sees the natural law tradition as providing grounding for principles of justice and morality in human nature:

If there are universal principles of justice ... then those universal principles must exist by virtue of what it means to be human, and if there is no such thing as a stable human nature, then there can be no such universal principles.

Of course there are principles of justice--the first of which is that people count as persons. The problem with the alleged "natural law" is precisely that is typically conceived in a way such that various categories of people, their experience and history, are deemed not to count.

Justice O'Scannlain draws attention to, and critiques, the so-called "sweet mystery of life" passage in the US Supreme Court decision Planned Parenthood v Casey wherein the majority opined that: 

... at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

This reads as an attempt by the US Supreme Court to acknowledge a wider range of voices and perspectives had entered into the public arena than had much purchase there in the past. Not so much new voices as the voices of the previously repressed.  Justice O'Scannlain writes that:

The passage does not necessarily deny that there is an objective human nature, but it insists that the law cannot reflect a particular conception of human nature. as the Casey passage says, each of us is to decide for ourselves what defines our existence and the mystery of life.

He is much concerned with the loss of a fixed notion of human nature. But the question at issue is not about fixed notions of human nature, but preconceived ones--not the same thing at all. All humans are part of defining human nature, not just the previously socially advantaged. The real fight here is not over objective conceptions of human nature versus malleable ones, as Justice O'Scannlain claims, but between a narrow and a broad view of human nature. Justice O'Scanlain does not wish to acknowledge--nor have the law acknowledge--a diverse human nature, that sexual and gender diversity is also part of human nature: not as abstract theory, but as simple human reality.

Justice O'Scannlain writes of the US Supreme Court decision United States v. Windsor, which struck down parts of the Defense of Marriage Act (DOMA), that the decision:

affirmatively declares that there is no objective reality to marriage and that any contrary view is irrational. This goes a long way toward ultimately declaring that the objective view of human nature is itself devoid of reason.

Anthropologists have found only one feature of marriage common across all human societies--that it creates in-laws. Marriage is a social creation and exists in varied forms across human societies. Of course that leaves it open to particular societies to define it in particular ways. Western societies have never had exactly the same conception of marriage and have changed their conceptions of marriage in various, sometimes, dramatic ways across the centuries: notably the abolition of coverture marriage.

Just as does Kenneth Livingstone, Justice O'Scannlain provides an invocation of history and tradition wildly lacking in any sense of history and ignorant of its own tradition. In his use of a mythic, ahistorical (indeed, metaphysical) notion of marriage, "objective" is being used to support the pre-conceived, but in a way which dramatically floats free from actual history, rather than, perhaps somewhat more surreptitiously, editing it conveniently.

In discussing the US Supreme Court Decision Lawrence v Texas, which struck down a Texas sodomy law, Justice O'Scannlain writes:

Lawrence was content to minimize the importance of pre–sexual revolution history. Windsor, after acknowledging that the conjugal definition of marriage has existed literally “throughout the history of civilization,” minimizes this highly significant fact in order to discuss the “new perspective” of same-sex marriage.

The sexual revolution responded to changed circumstances (particularly female control over fertility due to the contraceptive pill) and voices previously repressed--often with considerable brutality--being able to be heard. 

Technology and knowledge had changed. And again, history does not tell us quite what the good Justice believes. If the US Supreme Court took the view that same-sex marriage has no history, then it was engaging in bad history. So much of the contemporary debate over marriage, but particularly conservative invocations of human nature, is about being highly selective about what history counts, and whose history counts. Or simply being ignorant of history.

And if history is based on a "fixed" human nature, but only some history counts, then those whose history does not count do not get to be part of what defines human nature. They get to be defined as outside the "properly" human; and the notion of "proper" and "improper" forms of the human never leads to good places. Hence natural law reasoning, when based one's understanding of history and social arrangements as reflecting eternal verities of human nature rather than the contingencies of history, can have very dark implications (as I will explore in my next, and final, post in this trilogy).


[Cross-posted at Skepticlawyer.]