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.]