But in both Providence and Washington they have gone beyond misunderstanding First Amendment issues to an attempt to silence the advocacy of others. They did not silence the friends of the rich, or even the Tea Party movement, but pro-life views compatible with their central agenda. As frustrated medieval populists turned against Jews, our populists have decided to turn against Catholics. Why curbing the power of the rich should require abortion escapes me: many pro-choice advocates, including the Washington Post, explicitly invoke abortion to limit the numbers of the poor (especially African American and Hispanic). This is how the Symbionese Liberation Army (remember them?) viewed the politics of the ruling class.

Any political movement needs to avoid making unnecessary enemies. The Occupy Movement claims to represent 99 percent of the people, but have just kicked out pro-life people (just over half the population) and Roman Catholics (the largest religious body in America, and holding steady). And there could be much common ground between Catholic social teaching and the Occupy Movement, if only the Movement avoided anti-Catholic bigotry Machiavelli would have run out screaming into the night.

Philip Devine
Providence College

II.
Incoherence includes formal inconsistency, from which – by a result reached in the late Middle Ages – you can derive any result you please. In symbols P & – P → Q.
But incoherence also includes the co-existence of competing principles whose domain can only be circumscribed by arbitrary distinctions. The First Amendment both protects religion in a way it does not protect sports, and forbids giving special privileges to religion. Nor is the problem soluble by treating religion just like all other forms of expressive activity since one thing both clauses agree on is that religion is somehow special. Hence precedents supporting free exercise can be used to undermine no-establishment, and precedents supporting no-establishment can be used to undermine free exercise/
Using standard legal methods of reasoning by analogy, any result you please can be derived in such a system. It is therefore open to manipulation by whatever party is most able to buy skilled propagandists. For example the line between the public and the private sphere is not merely porous, but essentially arbitrary, and can be undermined at any point by the skillful drawing of analogies. At the extreme Anthony D’Amato argues that, even in the absence of multiple and conflicting norms, law and legal theory do not constrain a judge’s ruling in any case.
Many legal scholars who are not themselves “Crits” believe that the American legal system is an incoherent conglomerate masking the arbitrariness of moral and political choice. In this way they parallel Schmitt, who found a similar incoherence between the ‘liberal’ and the ‘democratic’ elements in the Weimar Constitution. In his own words, “Both, liberalism and democracy, need to be distinguished from one another so that the patchwork that makes up modern mass democracy can be recognized” (P 89). And again he writes of “the inescapable contradiction of liberal individualism and democratic homogeneity” (P 17), and, even in the more sympathetic Constitutional Theory, of “an unstable counterpoise of political forms” (CT 329). Nor is there any reason to believe that the implications of such ideas are in any favorable sense progressive. Xenophobic constitutional lawyers argue that the provision of the Fourteenth Amendment conferring citizenship on “all persons born … in the United States” does not extend to the children of undocumented aliens, whom such jurists think of as akin to an invading army. Berkeley professor and Bush Administration lawyer John Yoo has argued that the President as a higher law right to order the torture of children. Richard Nixon once said, “When the President does it that means that it is not illegal.”
That there are gaps and ambiguities in the corpus juris is now common ground. (By the corpus juris I mean that array of materials, formal or informal, on which judges are entitled or required to draw in arguing for their decisions.) The informal sources of law, on which legal arguments rely when the formal sources are indecisive or point in the wrong direction, include public policies, moral convictions, social trends, Whig views of history, and narratives of redemption or decadence. Even the widely admired Justice Powell is suspected of yielding to the persuasion of his daughters on abortion rights.
Even radical critics of adjudication acknowledge, sotto voce, that there are convincing legal arguments and that the experience of legal constraint is sometimes real. No one proposes teenagers or foreign nationals for the Presidency. Nor need this be a matter of textual compulsion: Congress is authorized to create an air force, though the Constitutional text speaks only of an army and a navy. Cases involving such issues do not find their way into the Law Reports, or even the Courts of Appeal, but such constraints supply the context for those that do.
Duncan Kennedy suggests, “That we see the judge as ‘working in a medium,’ namely law, to bring about the rule choices he or she thinks are just.” But ‘justice’ is hardly a transparent concept, nor are ‘progress,’ ‘democracy,’ ‘tradition’ or any other concept that could be deployed instead of ‘justice.’ As Schmitt saw, all such concepts have been deployed with specific polemical purposes (CP 30-31 and n.12); when they come to be used by a variety of advocates advancing a variety of causes, they lose their specific meaning and become mere pro-words (and their counterparts anti-words). If there are objective requirements behind such words, CLS people (and not CLS people alone) are ill placed to discern them. As Mark Kelman points out, CLS people are prepared to deconstruct legal meta-narratives – both conservative and liberal – along with everything else.
CLS people themselves make, sometimes controversial, prudential decisions like everyone else. Defending CLS against the charge of nihilism, Kennedy writes,
Critique does not leave us with “nothing,” in the sense of making it impossible to decide what to do, say, whether or not to be a leftist, or of making it impossible to figure enough about how the social order works to choose a strategy of left action within it. Those of us who are not moral realists (believers in the objective truth of moral propositions) are used to deciding on strategies, on the basis of balancing conflicting ethical and practical consideration. In the end, we make the practical leap into commitment or action. That we don’t believe that we can demonstrate the correctness of our choices does not make us nihilists, at least in our own eyes.
That Kennedy is not a nihilist in his own eyes shows only that as a nihilist, his own judgment on all matters is the last word. (He is not a consistent nihilist, in any event, since he is prepared to speak of error and enlightenment. )
Men and women in a variety of cultures, including our own, experience the law as manipulable. However much we may talk about a government of laws rather than of men (or women), we are obsessed, not only with the political and jurisprudential philosophies, but also with the religious affiliation and psychosexual configuration of the people who serve as judges. Sometimes the judgment of the Court represents the views of one Justice only, and much contemporary legal thought consists in attempts to develop arguments capable of persuading a single Justice. How much the fragmentation at the top affects the ordinary workings of our legal system is a complex issue, but the opinions of the Supreme Court are not merely legally authoritative but also have high cultural visibility.
III.
The coherence problems of contemporary American law reflect a broader and deeper crisis in American legal culture, in which the traditional restraints on the pursuit of self-interest and ideological agendas on the part of jurists have been frayed or destroyed. The ‘gentleman’s agreements’ that constrained legal argument have been weakened as the class, ethnic, and gender implications of the word gentleman have ceased to be acceptable.
Differences about the nature of society and the proper ends of law reach all the way down. There has never been a conflict-free society outside the gates of Eden: the state of the early Christian Church can be gathered from the letters of St. Paul. But every aspect of life is now a political issue. We are dealing with people taught to seek happiness in material things under conditions of resource scarcity – including some resources, such as the skilled actions of medical professionals, which are scarce by definition. Moral and economic conflict reinforce one another: the poor and those in-between can resent the vices as well as the privileges of the rich, and hostility toward welfare mothers has both economic and moral roots. We have strong beliefs about justice, both on the level or theory and that of practice, but these beliefs clash.
The opacity of laws and of (both public and private) bureaucratic policies undermines our ability to act as free citizens, and produces a reservoir of ill will that can be invoked in political controversy. Every group is under strong pressure to become political, since a minority without a lobby is in a very perilous position. The Neoconservative strategy of scaling down the socio-economic commitments of the state has failed, and its adherents are now busy increasing state power under the guise of “Homeland Security.” And a widening gap between rich and poor makes all social conflicts more severe. Concentrations of private power also exert a potentially malign effect on the law. Financial sleaze abounds, reflecting and reinforcing a culture in which economic life floats free of the disciplines of material production. The botched election of 2000 (and the apparently partisan stance of the Supreme Court) continues to cast shadows of illegitimacy on our political processes and to compromise the symbolic role of American. Constitution (It does not help matters that, on many contemporary jurisprudential views, a partisan Supreme Court is exactly what we should expect.)
We as a society, like every other society on the face of the earth, are open to influences from without, including environmental contamination, international business, immigration, external cultural influences and foreign lobbies. And the issue always arises, how these tensions might be overcome without a free-for-all or without giving immense power to an irresponsible and possibly malign bureaucracy.
I do not attempt a complete list of the tensions within contemporary liberal democracies: the conflicts cited are sufficient to place our constitutional understandings under strain. No system of rules – let alone a Constitution such as the American which contains broad expressions such as equal protection and due process – can withstand the persistent endeavor of persons of every persuasion, particularly those whose social situation gives them access to government, to bend it to their will.

IV.
Whatever the merits of natural law as a philosophical proposition, human law is the realm of convention. And as Dworkin, who in some ways himself leans toward Natural Law, testifies, “no one wants to be called a natural lawyer” in the contemporary legal world. Thus conventional jurisprudence attempts to proceed under a veil of ignorance concerning the good life for human beings, designed among other things to screen out natural law arguments. Hence the law treats its subjects, not as biological and cultural entities pre-existing legislation and adjudication, but as its own artifacts. It does not matter whether we speak of the commands of an ethereal sovereign, of a hierarchy of norms topped by a rule of recognition, of the constructions of Judge Hercules, or of law as free-floating cultural product. We are still likely to forget that, as Robert Cover puts it, “legal interpretation takes place in a field of pain and death.”
Steven D. Smith describes the resulting jurisprudential predicament.
The ultra-liberal discourse of equality and neutrality, though developed as a strategy for dealing with … cultural conflict, has proved inadequate not only to dissolve the differences but also even to comprehend and express them. This failure is hardly surprising; it is in a sense deliberate. How could a discourse intentionally crafted to keep fundamental premises and commitments off the public agenda hope to express deep convictions, and disagreements, on such issues?
V.
So far I have explored these issues in terms of the American institution of judicial review. This institution, and the (partly) jurisdiction state it implies, require supra-conventional norms if they are to make sense. And in fact American constitutional controversy is replete with moral claims, nearly always controversial. A background moral non-cognitvism about moral judgments complicates matters here: criticism of contemporary constitutional jurisprudence loses its vim and vigor because its proponents are unwilling to say either that Brown was wrong; or that the Justices ought to have said openly, in the face of expected opposition, that Jim Crow made them sick and that they would attempt to eliminate it for that reason alone.
But abolishing this judicial review, as Tushnet proposes, would not solve the problem of legal legitimacy. What Schmitt calls a legislative state (LL 4) does not escape the problems of legitimacy, authority, and coherence. Without judicial review, we need to have reason to believe that the ultimate lawgiver represents more than a transient balance of social forces — something along the lines of Rousseau’s general will. Otherwise other sources of resistance will emerge among those, of whom there are always many, discontented with the results of the legislative process (LL 23-25). Martha Nussbaum, in a book dedicated to Rawls, continues the liberal legalist tradition, but relies on the moral authority of a statute – the Individuals with Disabilities Education Act (1997). Such an appeal to statutory authority is, however, even more selective than Rawls’ appeal to judicial authority: Nussbaum would hardly appeal to the USA Patriots’ Act (2003) or the Defense of Marriage Act (2000), though large majorities supported both of them.
What Schmitt calls the ‘governmental’ state, “which finds its characteristic expression in the exalted personal will and authoritative command of a ruling head of state” (LL 5) can evade questions of legitimacy for a long time. So long as the de facto power of a king or dictator is undisturbed, external questions of legitimacy do not arise. The same is true of what he calls the ‘administrative’ state, “in which command and will do not appear authoritative and personal, but which does not seek the mere application of higher norms, but rather only objective directives.” (LL5). In the case of the bureaucracy, however, its cohesiveness must be explained, e.g., by a shared belief that it is the vanguard of History. In both cases, the subject is faced with this decision whether to comply or risk the costs of resistance; these forms of state do not invite arguments concerning the legitimacy of their decrees. Yet kings, dictators, and bureaucracies can become insane or collapse in some other way. In short, any legal system requires support either from the facts of power relations (as Schmitt thought), from considerations of practical reasonableness (as the Natural Law tradition affirms), or from some combination of the two.
Our law, whether statutory, judicial, or regulatory, gives some evidence about what we as a society believe, and thus is relevant to the discussions of social and political philosophers. But, on any fair account, law and contemporary public morality speak with a multiply divided voice. Some of the controversy arises from privileged sectors of society disposed to confuse their memories with their rights, or from a minorities intoxicated with their own sense of grievance. But without a framework of supra-conventional justice, we have no way of distinguishing valid rights claims from power plays, mystified assertions of privilege, or irresponsible demagoguery.

VI.
On the phenomenological level, legal reasoning begins with a hunch, which determines the result unless the opinion obstinately refuses to write. The starting point of the process always affects the result. It therefore matters what sort of people we appoint as judges. All a defender of liberal rationalism can hope to establish is that the rights and wrongs of legal decision-making are not beyond the scope of rational argument. The connection between the reasons that justify a legal or political decision and the decision itself cannot be logically tight, nor is there any bridge theory such as utilitarianism or Kantianism that eliminates the need for prudential judgment. And this fact continues to hold if we add to our grounds of justification such strictly political maxims as that the enemy of my enemy and is my friend. The Positivist thesis – also accepted by St. Thomas Aquinas – that law requires promulgation, if only by God, remains important, not because law is mysteriously free of connections with the rest of social life, but because there are prudential reasons for requiring determinate laws in a conflicted society. Even the best proposed law is merely a proposal until some competent authority enacts it.
Yet judges are never Nietszchean Űbermenschen creating ‘values’ ex nihilo: they are participants in a common endeavor of defining the terms of our mutual association. If we refuse to take the position of a disembodied spectator of human society, treating law as alien to other forms of practical reasoning, we can keep the discussion going. Moral considerations can provide not logically compelling but persuasive reasons for judicial, legislative, or executive decisions. Sometimes such appeals prove effective in practice. The separation of law and morals is a narrowly logical thesis only.

VII.
The American constitutional and legal order has undergone a complicated historical development resulting in multi-layered incoherence. At the root of the matter is a Constitution written by believers – both Calvinist and Enlightenment –- in the ‘laws of nature’s God’ – interpreted by a legal elite that has imbibed the (inconsistent) skepticism of Oliver Wendell Holmes. Even those branches of the law that retain internal coherence are under the Constitution, and open to arguments from analogy to other parts of the law and to principles pervading the law as a whole. And so their immunity from deconstruction is provisional only.
Both Liberalism and Conservatism have degenerated, along parallel lines. Liberals have moved from asserting the claims of the educated conscience, even when those in authority think it erroneous, to the celebration of ‘life styles’ founded in diverse inclinations (and a right to be protected against those who might disturb a sleeping conscience). The ideology of Choice reproduces Schmitt’s amoral decisionism in private life. Conservatives have moved from a defense of market economy within a natural law or Christian framework, to a celebration of the market as the sole or sovereign criterion of value – in other words as a substitute God. In both cases those who challenge the sovereignty of individual choice are regarded, not just as mistaken, but also as pathological (e.g., phobic) or evil.
The elaborate rhetoric by which civil libertarians attempt to derive absolute constraints on government from the authority of “We the People,” when the people themselves, or many of them, are prepared to discard these restraints out of fear, testifies to the emptiness of a constitutional tradition that has abandoned its natural-law foundations. As Joshua Dratel points out in a discussion of torture, Al-Qaeda does not represent a qualitatively greater threat to America than that posed by Nazi Germany, the Japanese Empire, or the Soviet Union. What has changed is the weakening of our moral certainties, resulting in part from the assaults of those who deem themselves progressive. If morality and law are alike social constructions (in Arthur Leff’s words, if “we are all that we have”), endless power struggle (hence also endless war) is the inevitable result. Either we have endless conflict among individuals practicing master morality or (more likely) among groups practicing slave morality. We cannot expect a society-based morality to support the proposition that it is wrong to do something to someone, however much the needs of society as expressed by its acknowledged leaders might require it.
No Natural Lawyer will deny the importance of legislation, custom, and judicial decision as ways of providing concrete applications or ‘determinations’ of the natural law. Yet Natural Law jurisprudence holds that human nature both undergirds and limits human law. Thus it gives us reasons to obey such law as well as justifications for sometimes resisting it. It also helps solve the problem of legal uncertainty, since if the written laws, in part at least, are evidence of an antecedent authority, then their gaps and ambiguities can be filled by reference to their source. The most difficult moral issues (slavery in the Nineteenth Century, abortion now) have to with what it is to be a human being.
The task therefore remains of finding developing a moral theory that is philosophically defensible and will receive sufficiently widespread assent to help us resolve difficult moral issues. Not only Thomism, but also Kantianism and utilitarianism, and various anti-theoretical approaches to moral philosophy, are candidates for such a role. Nor does accepting a Natural Law approach to jurisprudence commit a theorist to accepting St. Thomas’s political, moral, or theological views. Nor should we beg the question against natural law arguments for Positivism, in the tradition of Hobbes. The persistence of debates in philosophical ethics and normative political theory means only that we need to muster as many arguments as possible in favor of our positions, and refuse to take apparent deadlocks as final.
VIII.
Liberalism encourages a steadily widening variety of worldviews and ‘lifestyles,’ and hence also of groups whose veto precludes a claim of consensus. People who resent the presence of fundamentalist religious groups in American politics do not reckon with the fact that developments which they themselves supported have caused previously people previously concerned only to save men and women from a world doomed to destruction, to conclude that their cultural survival required an active role in political life. Hence it becomes harder and harder to liberal institutions to secure their own legitimacy.
In an earlier version of his doctrine, Schmitt held that “only something existing in concrete terms can properly be sovereign. A merely valid norm cannot be sovereign” (CT 63). Monarchy, as much as democracy, has to rest on sheer factuality: “What was still vibrant in the monarchy’s principle of form did not lie in legitimacy. … A monarchy that is nothing other than ‘legitimate’ is already historically and politically dead” (CT 245). Where a fundamental decision in required in a system that does not acknowledge any place for it, its adherents have recourse to “apocryphal acts of sovereignty (CT155) – by which I understand acts of sovereignty that are not openly acknowledged as such (activist judicial decisions, for example).
Schmitt located sovereignty in a state like Weimar Germany in the “constitution making power” of the people (CT 77). The exercise of this power cannot be identified with observance of any rule of procedure (CT §§ 8, [esp. p. 131] 9). For there is no magic in majority rule, or even in super-majorities and plebiscites, in a society that lacks consensus on fundamental issues of justice (on majority and supermajority rule, see LL 33-36, 40-41, 44-45, and 51-52; on plebiscites, see LL chap. 4 and 89-91). Acclamation rather than deliberation followed by secret voting is the natural form of expression of the constitution making power (CT 131, 272, 273, 275, 278, 302-306; see also LL 89).
One principle at least is clear, “the concrete existence of the politically unified people is prior to every norm” (CT 166). On this argument, to ask whether a constitution is valid is ask the question, which can be decided only retrospectively, whether it has secured the allegiance of the overwhelming majority (as the Weimar Constitution failed to do). And every element of a Caesarist regime in place, so long as that regime can claim the support of public opinion. One outcome of Schmitt’s argument was support of von Papen’s 1932 coup against Prussia, which carried the Weimar Republic into its terminal stage.
Another outcome of Schmitt’s argument was his defense of the Night of the Long Knives. His apology for this gangster-style massacre of many of Hitler’s supporters, including people close to Schmitt, and its subsequent retrospective ‘legalization,’ cannot be explained away as yielding to political necessity: Schmitt was alone among jurists in supporting Hitler’s action, his colleagues remaining prudently silent, and he reprinted his defense of Hitler’s decision in a post-war collection of essays.
Schmitt’s argument here resonated with much of his previous thought. For Hitler’s drew the line between ‘friend’ and ‘enemy’ and (so Schmitt hoped) made law and justice possible among friends. As he bluntly put it well before the Nazi takeover, “the friend, enemy, and combat concepts receive their real meaning, precisely because they refer to the real possibility of physical killing” (CP 33; the statement is somewhat softened at CP 33-34). Likewise, “The protego ergo obligo is the cogito ergo sum of the state” (CP 52) – acceptance of authority in a situation in which one’s life is in danger is the point at which Schmitt’s abstract political concepts meet lived reality. On its face this is a crude Natural Law argument: political power, and consequently law, rests on the mutual obligations of protectors and the protected (when the protectors in question are Nazis this can hardly be the end of the argument).
Schmitt insisted that he was always speaking of public rather than personal enemies (CP 28-29): the enemy is not a mugger, but someone who threatens an entire community and its way of life. But when the sovereign is not a rule or even a group but a particular individual, and his enemies are members of the same national community and even the same political movement, the distinction between the personal and the political tends to get lost. And the more abstract enmity becomes, the less persuasive the claim that it provides law and politics with a unique ‘existential’ meaning.
Moreover, Schmitt’s argument carries forward his polemic against “the right-blindness of liberal jurisprudence [that] tries to make of the criminal law … the Magna Charta of criminals [and] … of constitutional law the Magna Charta of traitors to Reich and Land [Hooch- und Landesverräter].” Liberal law was a “wickerwork of mandatory norms [Zwangsnormengeflecht]” without effective authority. In other language it is “poison for the people [Volksvergiftung] and “anti-German propaganda.” In contrast, “the act of the Leader was genuine jurisdiction [Gerichtsbarkeit].”
In terms of constitutional law, Schmitt held that the Weimar Constitution placed limits on its own amendment, and in consequence that the Third Reich was the result of a revolutionary decision by the Germany people to set up a new order.
In terms of jurisprudence, Schmitt stood for a thoroughgoing Legal Realism, which locates law in the decision of the highest magistrate [oberstes Gerichtsherr] (in this case Hitler), rather than in either conventional or supra-conventional general standards. Defenders of Positivism maintain that Nazi jurisprudence was a form of Natural Law, though very different in content from its Thomist variety. But its emphasis on the personal authority of the Leader puts Nazi ‘jurisprudence’ outside the Natural Law tradition, for which law is an ordinance of reason.
In political terms, Schmitt blamed liberal constitutionalism for allowing the regime he is now supporting and the tactics that brought it to power. The law could not protect itself.

IX.
There is a persistent ambiguity in Schmitt’s earlier thought (noted by Leo Strauss in his comments, CP 96-97), whether perpetual war is inevitable or desirable (and hence peace therefore something to be feared). Schmitt’s jurisprudence after the Second World War was, however, unsurprisingly pacific in its aims (N 49). He distinguished between a political or military adversary and a metaphysical foe, or last enemy of mankind (TP 85-95). He pointed against Cold Warriors that “absolute weapons of mass destruction require an absolute enemy, and he need not be absolutely inhuman” (TP 93). (Hence the demonizing of Communism only matter of bad Soviet behavior.) Yet the post-war Schmitt continued to hold “that the enemy is our own question embodied” (TP 85) — in other words the person who defines what we are. That the enemy has this sort of role, and consequently some sort of value, gives us grounds for opposing total war: Schmitt condemned Nazi crimes against humanity. At the same time it is hard to see how a Schmitt-style enemy can be anything but absolute.

A.
Just before the Nazi takeover, Schmitt distinguished a ‘qualitative’ from a ‘quantitative’ total state. A qualitative total state maintains a monopoly of coercive power, but otherwise distinguishes itself from society; the quantitative total state (what is now called a ‘totalitarian’ state) immerses itself in every sphere of human existence (to like effect see CP 38-39). In a text written in 1937 (L 92-98), Schmitt emphasizes that Hobbes is not an advocate of the quantitative total state; he refers on Hobbes’ behalf rather to “dreadful Asiatic myths of an all-demanding Moloch or an all trampling Golem” (L 95). A more direct critique of the Nazis would have been imprudent. Yet it is hard to see how Schmitt can take allegiances to communities other than the state seriously, unless they are prepared to wage a civil war and thus constitute themselves a rival state (see his comments on Cardinal Newman at CP 43n.18).
In another text from the same period (TT, esp. chaps 1-2), Schmitt mitigates his decisionism by what he calls “concrete order” thought. A judge is not a mere embodiment of an array of rules, nor is he simply a ‘decider’ (and the same is true of other persons in authority). Adjudication is a historically embodied practice, which claims authority within a given society. This idea has some contemporary importance: Justice Antonin Scalia has observed,
I am not so naïve (nor do I think our forebears were) as to be unaware that judges do not in a real sense ‘make’ law. But they make it as judges make it, which is to say as though they were making it, which is to say as though they were finding it — or discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.
A well-written judicial opinion does not merely amass formal and informal sources, but weaves them into a persuasive discourse; the ability to do so is called ‘craft.’ Judges admired within the profession practice this craft well, and even their minority opinions have some authority for that reason. But the principles of judicial craft are, however, not only incapable of mechanical application: they are also multiple, conflicting and contested, and whether it is possible for a judge, dealing with a corpus juris that points in multiple directions, nonetheless to say, “Not I, but the law in me,” or whether such statements are inevitably a reflection of the will to power or bad faith.
The question of the cultural character of the judiciary inevitably arises from such arguments. During his Nazi period, Schmitt argued that stability in judicial decision-making requires a culturally homogenous judiciary, attained if necessary by means of a purge of dissident “spirits” according to policies decided by a sovereign acting outside both law and common morality. Another step in Schmitt’s argument, added later, is his complaint about the replacement of traditions with ‘values,’ even those designated ‘traditional,’ and the attempt by political intellectuals to impose them, both at home and abroad, with the result that culture wars are now universal.
There is no reason to believe that Schmitt accepted Nazi racial mythology, but his anti-Semitism cannot be explained away as an accommodation to his Nazi protectors. Consider his remarks on “nineteenth century [baptized] Jewish philosopher Friedrich Julius Stahl Jolson” who “in accordance with the line developed by his people, used as deceitful manner to mask his motivations, which became all the more horrible the more desperate he became to be someone other than he actually was” (L 70). In a diary published after the war he wrote, “Verily, the assimilated Jew is the true enemy.” (It is as if he demonized bisexuals, and closet, non-practicing, and latent homosexuals.)
For such an anti-Semite, Jews, especially if baptized and assimilated, lack a proper culture of their own and therefore disturb the cultural unity on which the German Reich needs to rest. Where a writer absolutizes culture to this degree, it might as well be race. In any event, some sort of anti-Semitism, or its functional equivalent, is the inevitable consequence of any political philosophy that requires unqualified solidarity among the citizens of the same nation-state. There are grounds for suspicion whenever a writer contrasts the “tough-minded patriotism” of one candidate with the “soft” patriotism, “diluted … with the waters of cosmopolitanism,” of his opponents.

B.
Writing from the perspective of a defeated Germany, Schmitt claimed that Legality and Legitimacy “was an attempt to defend the last hope of the Weimar Constitution, the presidential system from a form of jurisprudence that refused to pose the question of the friend and enemy of the constitution” (LL 95).. The non-Nazi dictatorship that would have resulted if his advice had been taken may have been the best possibility available at the time. In creating such a dictatorship, Hindenburg would have been the constitutional President of the German Reich using powers conferred on him by a reasonable interpretation Article 48 § 2 of the Weimar Constitution. He would not have been Hobbesean sovereign standing outside civil society, but a political actor more aligned with some parts of it. In short the decision would not have “emanate[d] from nothingness” (PT 32). Nor could it have, since any decision is in some way intended to achieve a good. Normless leadership and normless adjudication, were they possible, would produce neither stability nor justice.
On one point at least Schmitt learned an important lesson during the Second World War. Breaking with fascistic understandings of the supremacy of the state, he affirmed, “there is not only state legality, but a law that precedes the state, law that is external to the state, and law among states” (N 82-83). Schmitt thus defended a legal order, which collapsed after the First World War, whose purpose was to ‘bracket’ war in Europe by treating other European states as ‘just enemies’ rather than criminals (see especially N Pt. III, chap. 1 and Pt. V, chap. 3, § C.) On such premises a crime of aggressive war makes no sense (see especially N 274). But even when the collective author of the law was Europe rather than the “international community,” Europe lacked the unity and capacity to back its judgments that we expect of domestic sovereigns.
Schmitt urges, “In the beginning was the fence” (N 74), or, in more prosaic terms, all law begins with the seizure of land (e.g., N 238). But fences require acceptance, or at least acquiescence, by people on both sides, and thus some sort of supra-conventional legitimation. Or else we are free to establish or remove any fences we please – so long as we have the ability to back our decision up with adequate force. The old Schmitt thus persists, in a normless act of appropriation that that is the precondition of law.
At no point was Schmitt a consistent Nietszchean, who held that human societies through their leaders could choose both their enemies and their institutions at will. There is, for him, a truth about human society, which will, if denied, “have its revenge” (LL 94) (as it did, not only on Weimar but also on Nazi Germany). And realism includes he acknowledgement that those who rule without legitimacy fall when they can no longer command overwhelming force. And if they lose legitimacy with their armed forces, say by attempting to use them to disrupt the constitution to which they have sworn loyalty, they cannot command force at all. In any case, however much Schmitt may have modified his views, his earlier spirit lives in our political discourse: enemies’ lists are back in vogue and we hear it said that the love of enemies is the “worst sort of immorality.”

XI.
It is doubtful whether Weimar ever had available an alternative to Schmitt’s jurisprudence to serve as a common platform on which Social Democrats and Centrists could defend the Republic against Nazi and Communist assault. Franz Neumann of the Frankfort School moved towards jurisprudence more sympathetic toward legal liberalism, but the turn came too late to be any use.
Schmitt is a political Manichean. His account of constitutional law and politics lacks a notion of balance, which allows a political system to accommodate a multitude of normative demands and a multitude of conflicting interests. He starkly opposes monarchy (or dictatorship) to democracy; the possible mediating element of a council of the wise does not exist for him (on aristocratic elements in the Weimar Constitution, see CT § 23). He could imagine only the extreme alternatives of Nineteenth Century liberalism and communist revolution, and not reformist forms of Social Democracy. The same feature of his outlook precludes attempts to establish equilibrium between the claims of the community and those of some minority or individual.
Schmitt’s emphasis on the need for homogeneity as a condition of democracy (P 9-15) is plainly too extreme: we need not stoke his or any other form of xenophobia to make democracy work. Nor should we think of the people as “a formless formative capacity” (CT 81). On the contrary, as Stephen Holmes observes, “a collectivity cannot have coherent purposes apart from all decision-making procedures. The people cannot act as an amorphous blob.” A plausible defense of constitutional democracy starts from the liberal rejection of self-enslavement, and concludes that the “sovereign people … cannot renounce its capacity to learn.” This argument grounds a constitutional right to free speech as well as informal attempts to silence or otherwise exclude minority (or majority) voices. More broadly, it supports judicial review along the lines of that defended by John Hart Ely.
But the tradition of balance represented by the Federalist Papers can only take us so far. The Constitution there defended led to a bloody civil war.
If the identity of the people as people depends on the Constitution, then persistent constitutional controversies imply a political schism. Banning an anti-constitutional party (as the German Federal Republic has done) may keep us from closing the door on future reforms, but it also means silencing criticisms of the status quo that may be well taken even if the proposed remedy is undesirable. Many of us do not want to live in a society characterized by full and free discussion of genocidal ‘solutions’ to social and political problems, even if no genocide actually takes place. But, though banning hate speech may prevent minorities from being silenced or worse, it also inhibits public dialogue concerning measures taken in their favor, even when there are reasonable arguments that these are unwise or unjust.
Drawing the needed lines requires a sort of adjudication that is open to as much corrosive skepticism as any other sort. Nor can the Supreme Court expect to impose its understanding of the Constitution upon large and articulate groups who cannot be convinced that their dissent makes them unreasonable. The idea that we are members of a structured democracy loses its credibility when a class of non-elected judges serving life terms claims to speak for ‘the people,’ however unpopular their judgments might be. For this sort of regime involves a distinction between rulers and ruled, of a sort antagonistic to democracy as anyone understands it. We may hope that the Court may restrain our persecutory instincts in times of national panic (it has not done so very effectively). There are occasions (Brown v. Board of Education, for example) where the Court has succeeded in leading public opinion. But sooner or later the Constitution, since its authority rests on “We the People,” must follow the election returns.

X.
Ernst-Wolfgang Bőckenfrőde, in a frequently quoted sentence, has observed, “The liberal, secular state lives off preconditions that it cannot itself guarantee.” Any legal system exists only because it is embedded in a culture that disposes members of the relevant society to accord it authority. Civil rights are useless unless there is a civil society that respects and protects them. In democratic politics, we need losers who are prepared gracefully to acquiesce in the results of a fair fight, as well as winners who will not use their victory to destroy the opposition. A satisfactory defense of constitutional democracy of any variety must therefore go beyond correct procedures, and affirm the value of the goods such a democracy makes it possible for us to realize.
A fortiori, the same is true of social democracy, even in the moderate form associated with the American New Deal. For if property is to be treated as a social institution, to be modified as the needs of society require, then we need a healthy sense of society as an association united by a common good. Otherwise, we cannot avoid a war of each against all (or tribe against tribe) conducted through the agency of the state. All other things being equal, the wider the consensual base for a society’s constitution and laws, the better.
Americans are protected, in part at least, from political collapse and extreme authoritarianism by a culture that inclines us to respect for law, including those laws that protect the rights of minorities however unpopular. Even the grubby aspect of American law takes place within a context that defines America, however vaguely, as a free country. Though this idea admits of a dizzying variety of interpretations, it does imply some limits on what the agents of the state may do. None of us want to tell King Demos, any more than ordinary kings and dictators, that they have a right to do whatever they choose to minorities. For each of us a part of a number of minorities, including a minority of one.
But just as Weimar Germany was unable to protect itself legally and politically, contemporary liberal societies may be unable to transmit their principles to the next generation. Members of a liberal society need to hold three propositions: as members of liberal society, we need to hold that each of us has an inherent dignity that the welfare of society as a whole cannot override. For the same reason, we need to hold that we are free and responsible for our actions (though we do not need the quasi-Nietszchean ‘autonomy’ sometimes associated with liberalism). As members of a liberal society, we need to believe that we are bound to one another to ties of loyalty that resist our present inclinations. The presence of people in high places in the educational world who deny these propositions is not necessarily a disaster, so long as students have received training in critical thinking, and have the opportunity to hear opposing points of view intelligently presented. More troublesome is a political practice in which every faction pushes as hard as it can, without a sense of the limitations implied by participation in a common enterprise.
But liberals nowadays prefer not to ask why these propositions are true. Many of our legal ideas, including the idea of a judge standing outside the normal patterns of reciprocity that characterize human society, are a reflection, and some would say a relic, of the older idea of a transcendent God. In Rawls, the belief that “each person possesses an inviobility founded on justice that even the welfare of society as a whole cannot override” is either left unsupported, or founded in an overlapping consensus including agnostic Kantianism and moderate forms of religious belief.
A broad theism, itself resting on an overlapping consensus among people of widely varying views, has historically defined the framework in which liberal rights have been asserted, defined, and recognized. Briefly put, human beings are created in the image of God. Many Americans these days believe that their rights are God-given, and thus immune to abridgement by the majority will, even when the content of their asserted rights would startle earlier advocates of natural rights doctrines. We remain, in fact, a highly moralistic society, in which being on the ‘right’ side is thought to excuse a person for worrying about acceptable tactics and good arguments. Ad hominem arguments are all pervasive in our political discourse – which makes dialogue about sensitive issues difficult. (Our last attempt at a debate on a fundamental issue led to a bloody civil war.)
The vague expression Judeo-Christian tradition represents the claims of natural law, and as such provides a vehicle whereby it can enter the law. People who are neither Jews nor Christians can accept important aspects of this tradition, as when the Qur’an forbids female infanticide. When disagreement occurs, as it always will, the imperative is then to continue the conversation. Arguments concerning justice can go on, including those that concern trade-offs between liberty, equality, community, and efficiency – subject to an ill-defined (and always contested) sense that some positions are beyond the pale. Not all possible views get expressed in ‘mainstream’ media, in refereed scholarly journals, by viable candidates for high office (or even by professors at respectable colleges and universities). Local forms of political correctness do not control the whole conversation, but they concur at some points.
Lawyers too believe, in their less cynical moods, that law is a source of normative constraint that supports both liberalism and democracy. Law schools do not graduate open believers in monarchism, fascism, or revolutionary socialism. Constitutional theory begins with a conviction that some judicial decisions are legally wrong and others legally right, for reasons that have something to do with a background political morality. And the culture of lawyers shapes our background culture as well (consider the all-pervasiveness of ‘rights talk’ for example).
We were founded as a secular state within a religious society. The American legal system was crafted by and for people who believed in, to use the words of the Declaration of Independence, “the laws of nature and nature’s God,” and continues to be sustained by a vague civil religion, which does not satisfy either the hungry heart or the inquiring mind – the sort of thing both religious and secular intellectuals loathe. This religion is largely sustained by not thinking about it; it is among other things embodied in baseball (a highly ritualized sport). But it provides a non-contractual incentive for continuing the task our (spiritual or physical) ancestors have begun, and for taking into account the effect of our decisions on future generations. In any event, it has come to extend to Mormons (who were at one time seriously persecuted. It also allows for the introduction of claims of supra-conventional justice into legal debate.
The legal elite, however, is skeptical or hostile to our civil religion. And the increased participation of government in every department of life (which no one in practice expects to reverse) puts the balance we have established between religion and secularism under strain. At the same time, any attempt to appeal to what unites us, however benignly intended or expressed, throws the hermeneutics of suspicion into high gear; to appeal to our common human nature is to risk charges of anti-Semitism.
Our civil religion is now under severe assault from a number of other quarters. The rise of a group of ‘new atheists,’ who would deny parents of faith the right to raise their children in accordance with their beliefs, is a source of unease. The importance of these atheists lies, not in their numbers or in the strength of their arguments, but in their impact on the canons of discourse, in so far they make it harder for anyone to speak for America as a whole. They might also use the public schools as ‘engines for atheism,’ thus undercutting parental instruction on religious issues. We see why Locke denied atheists a place in society, and Rousseau agreed. But people can value the civilization they have inherited, even though they believe that the metaphysical underpinnings that Christianity and Judaism once gave it are unsound. Morality, including political morality, is not strictly dependent on religion, though morality and religion fly together in loose formation.
Our society is also pervaded by forms of consumerism that lack the earlier materialism’s intellectual and moral seriousness. Spiritual as well as temporal goods are now offered in the marketplace. A prostitution ring lately in the news promises, “Our goal is to make life more peaceful, balanced, beautiful, and meaningful.” In a time of national trauma and mourning, the younger Bush, supported by former President Clinton, called for more shopping.
My concern here is with religion as a social bond, and hence also a source of support for our legal system, not as a means of grace for individuals. Discussions of secularization are befuddled by the intrusion of the author’s own religion (or the religion he has rejected). It is no comfort to a Shaker, whose religion is dying out because of its policy of universal celibacy, to say that religion persists as a permanent feature of human consciousness. If Islam becomes the default religion of the Netherlands, this is no reason for anyone but a Muslim to rejoice. The Calvinist tradition is deeply suspicious of natural religion, and even non-Calvinists must admit that some religious possibilities are entirely horrible.
As Charles Taylor puts it, “the existence of an alternative fragilizes each context, and makes its sense of the thinkable/unthinkable uncertain and wavering.” In a world of fragilized – I should prefer to say undermined or challenged – our consensus concerning such things as terrorism (in some parts of society), torture (in other parts of society), slavery (except in mystified form), and child sexual abuse (though the nonsexual corruption of children is a national institution), however real, is shallow.
The problems of challenged or undermined belief afflict atheists as well as believers. For the implicit telos of secularism is no longer clear-sighted atheism, as in the Enlightenment version, but indifference not only to religious doctrines but also to the questions to which they are addressed. Thus Steve Bruce writes, “In so far as I can imagine an endpoint, it would not be self-conscious irreligion; you have to care too much about religion to be irreligious.” And this seems to be a fair description of a fully secularized world, one in which the whole religious side of life is as a vague a historical memory as Columbus is for many contemporary students. Why anyone should welcome such a result escapes me.
As Taylor acknowledges in a footnote, however, challenged belief need not be in any obvious sense weak. Even a few like-minded people can make a great difference to our ability to sustain moral and theological judgments. Yet in the contemporary world we are driven to what has been called ‘Sheliaism’ or ‘cafeteria religion’ – an idiosyncratic personal religion and morality. But we remain social beings; we clump together in groups (especially to raise our children). In America the most important religious unit is the congregation, or in Catholic terms the parish. And we are also known for our religious exotica.
Tribal morality and religion, whether it corresponds to the nation state or to some subgroup with in it, can survive just about anything, except the dissolution of the tribe in question. In Ireland, if you call yourself an atheist, the next question is, “Are you a Protestant or a Catholic atheist?” and those Catholics who stop believing in the teachings of the Church, if invited to become Protestant, respond, “I may have lost my faith, but I haven’t lost my mind.” (I suspect that similar things are true in the former Yugoslavia and contemporary Québec.)
Fragmented religion is no more helpful in maintaining social cohesion than is atheism. Some minorities (religious or other) are criminal or otherwise malign. We must at least be prepared to say that paedophiles represent an unwholesome element in our body politic, even though they mount a defense of their proclivities within the bounds of contemporary liberal rhetoric. And, conversely, sometimes minorities, even a minority of one, need to protest the decisions of the majority. If we condemn Schmitt for his support for a political movement prepared to murder and torture in pursuit of its ends, and to bend the law accordingly, we must also condemn the same tendency when we find it among the politically and socially respectable. To refer in this way to what is morally repugnant is to enter the realm of moral controversy, but not necessarily to leave the realm of rational argument.
Even apart from the repugnant character of some contemporary possibilities, there comes a point when the celebration of ‘diversity’ means the breakdown of the framework for the shared deliberation essential to democracy. Hence there is no ground for indifference to, or contempt for, issues of collective solidarity. There is always cause for disquiet when people of whatever background break with their cultural tradition and fail to find a mooring in any other. (Whether such people are philosophers or suffer from a character disorder is hard to say.) Ambiguous identity – what Richard Rodriguez calls our ‘brown future’ – can lead to broadened sympathies, to opportunism, or to tragedy.
Up to a point we may regard each other as decent though mistaken people, but our differences sometimes become so intense as to strain even a tolerant culture. What some Americans regard as a super-protected right, others regard as an abominable crime. Some people are not prepared to tolerate even silent disapproval of their behavior or that of people close to them. Pluralism reaches its terminal state in a form of Political Correctness, which purports to recognize a multitude of cultures, but tries to prevent he adherents of each culture from expressing itself in ways that adherents of other cultures find offensive – with the offended group being free to define what is offensive at will.
In short, political conflict and war (including civil war) cannot always be avoided. Pluralist society is haunted by the threat of simultaneous cultural collapse and constitutional failure, and breakdown into two or more mutually hostile groups united by common myths and the exchange of protection for obedience. Human rights multiply faster than rabbits, but when the issue arises, what sort of being one has to be to have such rights, and what rights are more or less central, dialogue quickly reaches deadlock. We end up relying on a de facto consensus: even Asian critics of universal human rights admit a right to be free of “genocide, murder, torture, or slavery.” But even this consensus now wobbles.
If factionalism overwhelms the shared constitution that enables people to co-operate despite their differences, then, as Schmitt puts it, “it ultimately comes down to who holds the reins of power at the moment when the entire system of legality is thrown aside and power is constituted on a new basis” (LL 36).

XI.
Imagine a community that celebrates a rite with great pomp and circumstance. Even outsiders to the community frequently attend, in order to enjoy the show.
While this rite at one time was believed to secure the favor of the gods, few members of the community, even among those who preside over the rite, now believe in these gods; and, of those who do, many people doubt that their favor can be obtained in this way. Many members of the group describe themselves as ‘spiritual,’ by which they mean that, though they believe in gods of some sort, they do not approach them through this or other collective rites. The minority that believes in the rite keeps quiet for fear of ridicule, but those who debunk it openly are held guilty of bad taste. And sometimes members of the doubting majority, caught up in the mood of the moment, come to a belief in the rite’s efficacy. This belief, however, dissipates as the mood fades. Suppose further that the performance of the rite is essential to the group’s continued existence as a group, and without it its members would succumb to anomie, intense conflict among groups, and eventually to atrocious tyranny. What would you advise the leaders of the group to do?

Philip E. Devine
Providence College

In this chapter, I do not provide a polemic against liberal understandings of marriage, say on Christian or Aristotelian premises. Instead, I provide an internal critique of liberalism about marriage, where liberalism means not the politics of the Obama Administration, but the tradition founded in the English speaking world by Locke. God and His law are central to Locke’s political philosophy. But the liberal tradition has since become secularized, and challenges to inherited moral ideas concerning marriage and family life have been a principal arena for the resulting debates.
MARRIAGE AS A PROBLEM FOR LIBERALISM
The glory of the liberal tradition is its claim to enable people with radically different convictions and cultural backgrounds to live together in peace and co-operate for common ends. Yet marriage and family are crucial political institutions even on the most sedulously liberal premises. For they have to do with the continued existence of a society from generation to generation. And since the effects of changes in our laws and practices concerning marriage are likely to take a generation at least to become evident, marriage and family issues concern the future of our society in more than one way. Many bad arguments in favor of same sex marriage and no-fault divorce are refuted if we recall that what is at issue is not so much the vitality of marriages now in being, but of those celebrated by the younger generation and those following.
Marriage is an honorific expression that designates some sorts of relationships as at once especially valuable and subject to special normative requirements. Neither marriage nor any other form of recognized personal relationship is either a creature of the state or a merely individual matter. Marriage implies a decision by the prospective spouses to “make it legal,” though the legality at stake here may that of some non-state community. The custom of cohabitation before marriage clarifies our understanding of those marriages that in fact take place. Many homosexuals and heterosexuals not desiring children have found marriage irrelevant to their relationships. Thus the dispute about same-sex marriage does not concern the right of a minority to live its life in its own way, but conflicts of value in a field where the state is hard pressed to be neutral. Defenders of same-sex marriage proclaim that gay is good and endeavor to use the authority of law and the power of the state to put pressure on non-state communities to recognize them.
Douglas Laycock puts the resulting political issue as follows:
The nature of marriage is a question with profound religious significance and fundamentally disputed answers. The state has no more business imposing a single answer to that question than to any other religious question.
At the same time, Charles Reid points out with equal truth:
Where the state and the law fail… then it falls to the people to build their own communities responsive to their own values, independent of state authority. … If the impulse of the state to divert its legal definition of marriage from the traditional one spreads, civil society must separate itself from the state’s theory and practice of marriage, in order better to preserve its own.
THE CONCEPT OF HARM
There is no prospect of discovering an essence of liberalism, but the family resemblances among the senses and uses of the term reveal overlapping themes pertinent to our discussion. One of these is the concept of harm.
For liberals are not merely advocates of tolerance; they are opposed to social practices they find harmful. The Harm Principle, by which liberals traditionally resolve questions concerning the limits of state intervention, is porous. If we mean by harm bloodshed, then liberals should not object in principle to laws against abortion, cow slaughter, and the circumcision of baby boys (without a religious exemption), as proposed in San Francisco.
On the other hand, in a recent criminal case,
The accused … removed yoghurt containers belonging to two female victims from the refrigerated cooler and, using a syringe, injected his own seminal fluid through the container’s foil top. He then replaced the contaminated food into the victims’ lunch containers and into the refrigerator.
Even if the resulting concoction is not dangerous to their health, the ‘victims’ in this case were assuredly harmed. On a such a broad definition of harm, however, as Leszek Kolakowksi has observed, “when I write a negative book review I am harming the author; moreover, I harm others by the very fact of my existence, since I take up space and use goods that others might enjoy if I were not there.”
If we limit ourselves to harm to persons, the question, what is a person? arises. Liberals might follow Locke in holding that children have inherent rights as potential citizens and prohibit harm to them on that basis. Without some such assumption, the claim that parents own their children, who are products of their reproductive and educational labor, would be hard to refute. But this means that the interests of infants (those who do not speak) will have to be interpreted by some adult or group of adults.
What liberals require is claims of harm that are uncontroversial, both in their normative and in their causal aspects. In practice this criterion means uncontroversial among reasonable people, i.e., among people like us. There are people who regard a religious education as abusive. The resulting issues are settled by the invocation of collective power, at least as default mode when other methods of dispute resolution fail.
HEGEMONIC LIBERALISM
Hegemonic liberals are prepared to use the authority of the law and the coercive power of the state to break up communal structures. (We may call such people Liberals, with a capital L.). Even when the state is scrupulously liberal, authoritarian and inegalitarian structures persist within society, which Liberals endeavor to destroy. Philosopher kings (and queens) or Nietszchean Űbermenschen define Liberal principles, and their ideological auxiliaries undertake to impose them on the rest of us through the courts, the media, the welfare system, and the educational system.
Thom Brooks for example argues against polygamy (or more accurately polygyny) on the ground that it is “structurally inegalitarian both in theory and in fact.” He ignores the fact that a woman, for her own good reasons, might prefer the kind of man who is likely to want multiple wives; and that, as with other small social groups, any adult member can leave a polygamous (or polyamorous) household at will.
As far as the Platonic version of hegemonic Liberalism is concerned, Abigail Rosenthal puts the matter well, “People do not merely fear its abuses. They do not desire its success.” The Nietszchean version requires a bit more attention.

POSTMODERN LIBERALISM
Nietzsche, though not a Nazi, cannot be made a principled democrat, socialist, liberal, or feminist.
Richard Rorty’s “postmodern bourgeois liberalism” accepts Nietzsche’s understanding of liberalism as herd-animalization, as well as its shocking practical implications concerning both murder and torture. But if truth is, as Rorty has said, what our peers will let us get away with, then all moral issues, including those concerning marriage and the rearing of children, are simply a matter of the mores of a given group. And we will have nothing to say to parents who believe that they own their children except that we have more power than they do.
LIBERTARIANISM
The Libertarian solution to the dilemmas of the liberal tradition is to reduce the role and powers of the state, and abandon the attempt to make equality more than merely formal. Friedrich von Hayek’s puts the case against social justice this way: “As soon as the state takes upon itself the task of planning the whole economic life, the coercive power of the state will alone decide who is to have what, the only power worth having will be a share of directing power.” And this means tyranny or a war of each against all – or at least of tribe against tribe – conducted though the agency of the state.
We ought, therefore, to abandon the quest for the correct distribution, and attempt to create institutions that make as much room as possible for the exercise of individual agency.
Libertarians hope that a shrinking state will create the social space for the growth or revival of a multitude of communities, each with its own form of marriage and family and its own system of social supports. Marriage on such premises should be a matter for such communities and no sexual relationship between or among consenting adults should be the concern of the state. Nor should any community be required to recognize the others’ marriages, for example in placing children for adoption. In short, the state should facilitate freedom of choice, while leaving the question of what relationships count as marriages in the honorific sense to religious discourse.
But Libertarianianism rests on a number of questionable assumptions, the most important of which for present purposes are the following. First, Libertarians assume that the state alone, perhaps combined with the moral weakness of individuals, is responsible for the erosion of communal ties. Second, they assume that, to whatever extent the state is responsible for damaging non-state community structures, the problem can be resolved by shrinking the state. Third, they assume that vulnerable members of non-state communities, including children, will not be exploited if the market reigns supreme. A Libertarian state can punish abuse or perhaps even neglect of children, but is obliged to tolerate environments in which abuse or neglect is likely and children’s flourishing unlikely. Fourth, they assume that, if the state shrinks, the required communities will appear in sufficient strength and numbers. Fifth, they assume that the adoption of a contractual model of marriage or marriage-like relationships is neutral about fundamental issues of value, and has no significant impact on persons who do not and cannot consent to it.
Unless we are prepared to allow parents to kill, rape, mutilate, or to sell their children, the state must be allowed to share power with parents even in the sphere of family life. On secular Lockean principles, it seems that parents own their children, as products of their activity. If we do not invoke Locke’s belief that God assigned children to their parents as trustees, the source of children’s rights against their parents is either metaphysical (Kant’s noumenal self) or hypothetical (an adult self that may never develop). As the best account I know of says:
In Kantian language, we might say that the child’s empirical self owes its obligations to the child’s timeless noumenal self, and that parents likewise owe their obligations to the noumenal person “behind” the child they are raising. But if we wanted to avoid endorsing Kant’s transcendental idealism, we could simply say instead that the current child and its parents owe their obligations to a hypothetical person reflecting the child’s future interests.
The upshot of Libertarianism is a form of social Darwinism, in which groups that are biologically and culturally reproductive prevail over those that are not. If we are not prepared accept this result, contractual liberty must be supplemented and constrained by a richer public morality.
OVERLAPPING CONSENSUS
The later Rawls treats liberal principles as reflecting an overlapping consensus among ”reasonable” groups, excluding points of view he regards irrational or even mad. But the claim that that civic-mindedness should always trump one’s deepest beliefs goes beyond what is acceptable to serious believers in any religion or political ideology. Religious and ideological groups in pluralistic societies appeal at once to adherents, to potential converts, and to outsiders, in each case employing a different set of arguments. To require more is totalitarianism without the secret police. We must now ask how contemporary societies can deal with a multitude of religious and cultural groups without suppressing dissident voices.
PLURALISM
One traditional American response to religious and cultural diversity is an accomodationist form of liberalism: let each group and each individual understand God and humanity in its or his distinctive way, and establish whatever internal normative structures are in accordance with its understanding, but let none of them coerce the others. The resulting ‘modus vivendi liberalism’ requires a distinction between legitimate minorities and criminal conspiracies. For no one these days celebrates the contribution of neo-Nazis, Mafiosi, and pedophiles to the rich diversity of American life.
When the legitimate minorities have been specified, society rests on a contract of mutual forbearance among them. The resulting social philosophy can be summed up as don’t rock the boat. It is vulnerable to the development of group whose material and psychological resources, including a conviction of rectitude and a willingness to pay the costs, enable it effectively to demand the rewriting of the rules of society in its favor or that of its protégés. Truces have a way of breaking down.
, As two students of the multiplicity of legal orders worldwide have concluded, “A common grammar has not been found” for such orders. These jurists suggest a “rizomorphic” process that “does make subordination to the fiction of a common validity core possible.” (The word rizomorphic refers to the branching roots of certain fungi.) St. Augustine’s question, Take away justice and what are kingdoms but big syndicates? therefore takes on a special urgency. We cannot abstain from the legitimation enterprise – which may turn out to be a de-legitimation enterprise – as some legal pluralists would have us do.

THE SOCIAL CONTRACT
The heart of the matter is the movement, spurred both by economic developments and by ideals of liberty and equality, from status to contract, which has proceeded from political institutions to familial relations. Intergenerational communities, however useful in the rearing of children, have become problematic, even if no title of nobility is attached.
Though propelled by libertarian and egalitarian convictions, the movement from status to contract is ambiguous in its impact on human equality. Easy divorce may be good for women with abusive or irresponsible husbands, but not for women who fear that their husbands will leave them for a younger and more attractive woman or man. If we formalize the needed understandings, the legally less sophisticated spouse, usually the wife, can suffer as a result of a pre-nuptial contract limiting her rights in the event of divorce. In the case of children, their recognition as full persons could easily be postponed to the point at which children can retaliate. In the contemporary world, children as young as seven are made soldiers, and if contractual ways of thinking prevails, we may expect this age to go down.
In short, status relations favor the very young, the very old, the sick, the disabled, and anyone else whose bargaining position is weak. Moreover, the claim that human beings are by nature equal is itself a status claim, one that relies on a sharp distinction between human beings and other forms of life.
Yet the movement from status to contract goes all the way down in liberal theorizing. At the root of liberal political philosophy is the grounding of collective life in a contract, variously understood in the different streams of the liberal tradition. Even Mill, who disavows the word contract, thinks of society as a limited purpose association, defined in terms mutual non-aggression, and to a lesser extent mutual assistance. He writes of “the Limits of the Authority of Society over the Individual,” not the State. But it is absurd to think of a pre-rational child as a party to the social contract on any of the various understandings within the liberal tradition. And the same is true, a fortiori, of the members of future generations, whose very existence depends on reproductive and other decisions made now.
The same considerations apply to the liberal concepts of consent and rights, which in liberal usage are closely tied to contractual modes of thought. The principle of the informed consent of the governed escapes the criticisms made here, since those concerned are all adults. We can even speak of the rights of the child, provided we do not build the liberal conceptual scheme into our understanding of rights. But we cannot make decisions concerning the way children are reared under a veil of ignorance concerning the sort of citizens we want in our society.
PERSONS AND PEOPLE
Human society is composed of two sorts of entities, whose reference range is roughly the same: persons and people. Persons are permanent possibilities of contract formation. (People are the men, women, and children we meet every day, each of them a nexus of social relations.
If we accept the Lockean argument that children have inherent rights as potential citizens, and hence are persons, the same will be true of normal fetuses. But there is also a pro-life argument that focuses, not on persons but on people. . As Mother Teresa put it in her Nobel Prize Lecture, “If a mother can kill her own child, what is left for me to kill you or you to kill me?”
Everything critics, both of the Right and of the Left, have said against liberalism is true. The deepest reason for the failure of the liberal tradition lies in its etherealizing tendencies; treats us as persons rather than men, women, and children. Yet, without coercive measures of the sort attempted by Pol Pot, I see no way of establishing the sort of universal solidarities that would allow us to dispense with the contractual relations among persons to which liberalism appeals.
Philip E. Devine
Providence College

Bob could often be found hiking the
mountains and trails of New England with his faithful friend and canine
companion, Tobit. His love of the outdoors offered him many peaceful hours of
philosophical reflection.

Though a superb teacher and an active scholar, as well as a
congenial companion and a man of great integrity, Bob was consigned to the life
of a gypsy scholar and experienced the seamy side of academic politics in
virtually every form. His death is a great loss, not only to his friends and
family, but also to the profession.

Philip
E. Devine

Professor
of Philosophy

Providence
College

Richard Dawkins has written:

Our
ethics and our politics assume, largely without question or serious discussion,
that the division between human and ‘animal’ is absolute. ‘Pro-life’, to take
just one example, is a potent political badge, associated with a gamut of
ethical issues such as opposition to abortion and euthanasia.

What it
really means is pro-human-life. …  But
such ‘essentialism’ is deeply un-evolutionary. If there were a heaven in which
all the animals who ever lived could frolic, we would find an interbreeding
continuum between every species and every other. For example I could interbreed
with a female who could interbreed with a male who could … fill in a few
gaps, probably not very many in this case … who could interbreed with a
chimpanzee.  …

What
would change everything is a practical demonstration, such as …   a successful hybridisation between a human
and a chimpanzee. Even if the hybrid were infertile like a mule, the shock
waves that would be sent through society would be salutary. This is why a
distinguished biologist described this possibility as the most immoral
scientific experiment he could imagine: it would change everything!

The distinction between a chuman, or hybrid of male chimpanzee and
a woman, and humanzee or manpanzee, or hybrid of a man and a
female chimpanzee is of some moral importance.
For in the eyes of many of us there something peculiarly repugnant about
asking a woman to gestate a human-chimpanzee hybrid.  Since, however, the focus of my essay will be
the implications of chimpanzee-human breeding as such, I will use the
expression humanzee throughout.

The questions are two, should we create a humanzee? and if someone creates a humanzee, what follows?   The phrase
“most immoral scientific experiment” covers a lot of territory, but, in this
case at least,   Leon Kass’s “wisdom of
repugnance” is well-grounded.  There does
not seem to be any compelling reason to create a humanzee, except the
imperative do whatever is technically possible.
And there are plenty of bad reasons, such as the need for a slave labor
force, for the desire to create a class of subhumans.    Setting aside Dawkins’ glee at shaking us
up, we have plenty of problems already without trying to find a place for humanzees
in our society.

But in the eyes of many of us creating humanzees is not
just imprudent, but unnatural, or even monstrous.  In a world in which every imaginable variety
of sexual behavior and reproductive technology has its defenders, this kind of
argument cannot be expected to convince everyone.   But
before we rejoice at our liberation from inherited constraints, we must
acknowledge its dark side.  Eminent legal
scholar John Yoo has asserted that the President has a higher law right, which
cannot be overridden by statute or treaty, to order the crushing of the
genitals of a young boy, in order to get his father to talk.

There is a paradox involved in the
conclusion that we ought not to create some kind of entity, at least if we are
not prepared to argue that it ought to be killed once it comes into being.  For never having come into existence is not a
possible life course like going to jail or remaining free.   But everyone will concede the argument in
some cases:  we ought not deliberately to
create children addicted to drugs in order to study their effects.   

In
the rest of this essay, I shall approach the larger issue by examining the
question, if someone does create a humanzee, what place should the hybrid have
in our social institutions?

Not so long ago, being
conceived or born outside marriage carried with it severe social disabilities.  Even now many people believe, rightly or
wrongly, that the products of incest or rape, and even more so of incestuous
rape, ought to be aborted, and one
deterrent to adopted children seeking their birthparents is the possibility
discovering such origins.   And there are
pressures on the mothers of fetuses, however unreliably, diagnosed as impaired,
to have abortions as well.  A
woman of my acquaintance was unsuccessfully pressured to have such an abortion,
among other people by her mother, who had previously told the woman’s husband
that he was a sperm donor.  (The child did
not, as thought, have Downs.)

The
judgment that a certain person ought not
to have come into the world is going to have its effects on the person, even if
we do not explicitly apply it to him after birth.   But such considerations can no more be
counted on to prevent the production of humanzees, than in earlier days they
prevented the production of bastards.

It is an axiom of
contemporary ethical debate that all human beings or persons are entitled to
equal rights, including a right to life and a right to liberty.  Notoriously, however, there are endless debates
about what entities count has human beings or persons “within the meaning of
the act”; and, more fundamentally, on what grounds we are entitled to assert the
existence of human rights.  That we were
endowed with such by our Creator is no longer common currency, and even among
those who assert a religious basis for human rights, the results in practice
cover the ideological waterfront.

One
persistent source of difficulty is that human beings are in no observable
respect equal.   We are not, for example,
equally capable of making decisions for ourselves, as opposed to following
whoever most recently has addressed us in an authoritative tone of voice.  Under the circumstances, the following ways
of answering the questions, Who is human?
and Who is a person? have emerged.

• A human being or person is any entity our
  laws or customs recognize as such. I call this the conventionalist principle.
• A person is an entity presently able to
  engage in rational activity including reflection.  I call this the present possession principle.
• A person is an entity that presently or
  in due course will be capable of engaging in such activity.  I call this the potentiality principle.
• A person is any member of the human
  species, and perhaps also any other intelligent species.  I call this the species principle.

The
conventionalist principle is useless, since whether we should treat a humanzee
as a person has now no settled answer.
If the problem became real, large and powerful segments of society would
treat such creatures as freaks and monsters, to be destroyed as quickly as
possible.  Supporters of this alternative
would include those people who fear the competition of humanzee labor.   Other powerful interests would urge us to maintain
humanzees in being, in order to make use of their services.  One tempting course would be to re-invent
racism and hold that we had created a class of natural slaves.    Thus, for example, female humanzees would
be legitimate outlets for the surplus sexual energy of young human males,
whereas sex between a woman and a male humanzee would be regarded as an
abomination.    In any event, the question is one of power
politics, not philosophical reflection.

The
present possession principle is right on one point.  If we encountered a humanzee capable of
rational activity, we would be obliged to acknowledge him or her as one of us.   At what point we draw this line is a
complicated issue, since we cannot rely on the practice of according human
rights to impaired members of our own species.
Moreover, as in the human case, the present possession principle permits
us to prevent such a result by killing humanzees in the womb or even in
infancy.   Killing humanzee babies will
be as acceptable as killing human babies.
Michael Tooley dodges this implication in his recent writings, but he drew it explicitly at one
time, and has never explained why it does not follow from his assumptions.

The
potentiality principle avoids this result, but encounters the following
difficulty.   Even among human beings a sufficiently
impaired entity will not count as a person, and there is no clear standard
telling how much impairment is sufficient.
But, faced with infants or fetuses in all known respects normal, we
presume that they will in due course be capable of rational activity (though
the practice of aborting fetuses on uncertain diagnosis of impairment is to the
contrary).   But no such presumption is available for the
humanzee, which is likely to be either a very intelligent ape or a cognitively
impaired human being.

Finally,
the species principle puts us back where we were.  Whether humanzees count as members of the
human species or some other, and if some other whether that species counts as
intelligent, is the question at issue.  I
conclude that there is no way of answering philosophically the question of the
status of the humanzee; in practice the issue would be one of power politics.

There
are three possible ways of proceeding from here.  One, suggested by Dawkins, is to abandon the
whole framework of human rights and dignity in terms of which the debate is
framed.  John Gray has vigorously
defended such a view.   A second possibility is to take the
“progressive” route and give humanzees, along with other borderline cases such
as pre-embryos, the rights of full-fledged humans.  The third is to strongly oppose the creation
of humanzees, and deal ad hoc with
the (we hope) few attempts people make to produce them.

Historically speaking,
there have been abundant examples of caste systems, in which some human beings
have been regarded as of lesser inherent worth than others.  Such systems have not always condoned the
killing of a low caste human being.  In traditional Hindu thought, killing
a Brahmin was the worst of offenses, but this did not mean that killing members of other castes was
acceptable; abortion was a paradigm of evil behavior.  (See Mahābhārata, 1.149.7, 1.56.17.)    On the other hand,
advocates of animal rights propose that we should extend our concept of equal
dignity and rights to nonhumans.  But
defenders of animal rights – whether Kantian or utilitarian in inspiration –
trade heavily on principles of equality defined and defended in human contexts
– equal rights for women and racial minorities most especially.     This true both of Tom Reagan and Peter Singer,
and of everyone else who uses the term speciesism
to draw an analogy between species membership and race or gender.  In short, the case for animal rights is
parasitic on the tradition it undermines.

The proposal to give borderline
entities the benefit of the doubt has great appeal.   But it supposes that the case for denying
them full status as persons is less than compelling.  If the pre-embryo is a borderline case of
personhood, we ought not to create one with the intention or expectation of
subsequently destroying it.  If, however,
one come into being when a woman is raped, more than a benefit of the doubt
argument is needed to require us to spare it.
And so the question of the status of the humanzee will, by default, be
one of power politics.  And once such
entities exist in significant numbers, the gravitational force of social practice
will strengthen the, already powerful, temptation to say that might makes right
everywhere.    Therefore we ought not to
create humanzees. 

NATIONAL REVIEW …stands athwart history, yelling Stop.
William F. Buckley
The truth is that Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, Newton, the emancipation of women, Karl Marx, Balanchine ballet et al. don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history, and it is the white race, and it alone – its ideologies and inventions – which eradicates autonomous civilizations wherever it spreads, which has upset the ecological balance of the planet, and which now threatens the very existence of life itself.
Susan Sontag

Tradition is one of those words whose sense, reference and evaluative force depend on who uses it and why. The concept of tradition, as well as being conspicuous in contemporary debates about marriage, is also central to Alasdair MacIntyre’s work both as an educator and a cultural critic. It will be an essential resource for the development of whatever answer his admirers may give to the question, what is to be done? Many a revolution has been spurred by the desire to restore a tradition that the pursuit of external goods such as wealth has corrupted, but it remains to be seen whether MacIntyre’s philosophy supports this or any other form of political practice. Since MacIntyre like Marx is proposing a philosophy of practice, his inability to answer questions of application would mean that his philosophy had failed.
Samuel Scheffler lists a number of reasons why people value tradition, and are reasonable in doing so, for example that it makes it possible for people to find a home for themselves in time as well as space. But he neither cites MacIntyre nor responds, negatively or positively, to his concerns. And on the issue of most concern to me here he says only, “it is a truism that the traditions most likely to endure are those that develop successful techniques for balancing continuity and change.”
I.
Advocates of tradition argue that is an inescapable part of our reasoning about both theoretical and practical matters. Yet the concept of tradition in MacIntyre suffers from an ambiguity, one that also appears in many writers of a similar tendency such as Newman and, despite MacIntyre’s hostility to them both, Hume and Burke.
In Oedipus Rex Laius, fearing that his son will displace him has him exposed. But, however powerful fathers may be, and however ruthless they may be in suppressing their children, they always end up displaced. And the same is true of the status quo, however abstractly considered. For no set of rules, however detailed, can provide for all the conflicts that call forth divergent interpretations. The open-texture of our concepts means that our rules will always require interpretation, and the clashing interests and outlooks that exist in any society means that we will always face divergent interpretations of our inherited ideas. (An illuminating counter-example is the rules of chess.) And some of these interpretations will be innovative or even radical. Locke, while a key figure in the libertarian side of our tradition, can be interpreted as a social conservative, but arguments drawn from his writings can also undermine his traditional views and make the prohibitions on suicide and infanticide that inform his political theory entirely arbitrary. In Newman, the true course of development is discerned intuitively in a way that gives no guidance in case of real doubt. In any case, a tradition could not guide its adherents if it did not also constrain them; if it did not rule out some possibilities it would be useless.
II.
MacIntyre draws on the thought of Thomas Kuhn and Imre Lakatos to define tradition as an element of an ongoing practice of inquiry, that might include large revisions of inherited theory and practice. Another model for understanding a tradition is that of a craft; crafts like traditions can like develop or degenerate. And similar issues arise: does Andy Warhol develop the visual arts, or does he represent their degeneration? (Even Warhol’s admirers might draw the line at Maine lawn sculpture.)
Yet another model for tradition is a natural language, and so that the possibility that a person might become an adherent of, or at least understand, two different traditions is analogous to the possibility of his becoming bilingual. Wittgenstein provides an enlightening picture of language, and hence also of the broader tradition carried along with it.
Our language can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions made from various periods; and this surrounded by a multitude of new boroughs with straight regular streets and uniform houses.
Our city includes not only the stable elements Wittgenstein mentions, but also regions under construction, zones of conflict, and burnt-out districts not yet rebuilt. It also includes regions in decline: as Simon Blackburn puts it, “To paraphrase Wittgenstein, when we start to abandon a way of thought, the lights do not go out one by one, but darkness falls gradually over the whole.”
MacIntyre’s philosophy requires that we find a middle ground between ideas in Platonic heaven – as one might create Islam as a contribution to contemporary debates about hermeneutics – and entrenched social habits. Traditions in the relevant sense are historical-cultural facts as well as systems of belief and practice, and they could do what they do for human beings were they otherwise. All traditions have to be transmitted from generation to generation, and the process of doing so is emotionally fraught. Thus those features of our existence that liberals dismiss as accidents of birth, such as birth on certain territory or of certain sorts of parents, retain their relevance. Socrates, Plato, and Aristotle were Greeks looking for a common human nature, with equal emphasis on both sides of this proposition.
In any event, we can distinguish two kinds of inquiry. One consists in the attempt of adherents of a tradition to understand it more deeply and apply it to problem situations. The other form of inquiry steps, at least to some extent, outside the rival traditions and asks whether some tradition has exhausted itself, and whether some other tradition can solve the resulting problems more adequately.
At this point in the argument, we can exclude certain some of radicalism. Sontag’s claim to stand over and above the Western tradition and judge it as a whole is without foundation. (It is also characteristically Western.) In MacIntyre’s sage words,
Claims about hallucinations, illusion, distortion of thought, and the like can be made only from the standpoint of claims that the contrast can be clearly drawn between hallucinatory, illusory and distorted modes of perception or thought, on the one hand, and genuine perceptions of realty or rigorous or undistorted reflection and deliberation, on the other. Hence, to identify ideological distortion one must not be a victim of it oneself. The claim to a privileged exemption from such distortion seems to be presupposed when such distortion is identified in others.
But our problems arise, not from outside agitators, but within the practice of our society, and lead to disputes among those usually considered conservative.
What may be called the ‘integralist’ impulse tries to rid a cultural tradition of extraneous elements, at the risk of eliminating important truths; on the other hand the ‘cafeteria’ approach to intellectual issues, which picks and chooses among inherent ideas according to need or even mood, gives one every opportunity for adapting one’s beliefs to one’s purposes, even in the most cynical way.
III.
As MacIntyre has observed, “traditions are defined retrospectively,” often because some challenge makes their adherents aware that all of them, whatever their differences, are contributing to the same enterprise. Tradition is then further defined, by granting authoritative status to some documents of the past, as the New Testament accorded authority to what Christians call the Old Testament, or St. Thomas called Aristotle “the Philosopher,” contemporary scientific naturalists adduce Galileo and Darwin, or literary modernists look back to Joyce and Eliot.
Tradition is a feature of a community that unites author and reader, but there is a long-standing practice of ‘unorthodox’ reading. In consequence, the most important issues for a tradition arise from disagreements among adherents of the tradition itself, who are at least presumed to be able to apply its governing concepts competently. When adherents of a tradition disagree, they look for core elements in the tradition immune to change in terms of which disputes on the periphery can be adjudicated. But often different adherents find the core in different places, in which case we have two or more traditions where we previously had one – in other words a schism. Two sorts of situation we can be distinguished: a set of rules and principles fails to determine a result in some case, so that competent representatives of the same tradition reach different conclusions; and a tradition divides into two or more sub-traditions, which differ systematically in their conclusions. But these two situations are but different sides of the same phenomenon.
Macintyre’s most important contribution to the resulting discussion has been to forge a link between rationality and tradition. He points out that it is possible that a tradition might fail by its own standards, and thus encounter an incurable epistemological crisis. And adherents of such a tradition might discover that some other tradition better solves its problems than the tradition itself can do. Hence he has hopes of avoiding relativism.
Reflective traditionalism admits the need for change while insisting on the demands of continuity: Burke, after all, was Whig, not a Tory. Yet Burkean traditionalism threatens to become an empty rhetorical form, casting “decent drapery” or a “politic veil” over the results of power politics, whatever they might be. The revision of Buckley’s slogan sometimes proposed, “The dominant strain of conservative thought has stood athwart history, yelling “’Slow Down!’” keeps us on any slippery slope on which we might otherwise find ourselves, even that from Weimar to Hitler, so long as we go down slowly. Lacking on any version of the standard conservative or progressive account of tradition is the possibility that we need a change of direction.
Jeffrey Stout reads MacIntyre as demanding a highly structured tradition as the only alternative to conceptual and moral chaos. In his own language,
Equally essential to the rationality of a practice, according to MacIntyre’s account, is its embodiment in institutions that are capable of securing agreement on a doctrine of the human good (presumably by means of catechism directed at newcomers and a combination of magisterial suasion, discipline, and excommunication directed at dissidents).
Citing Susan Moller Okin’s “incisive” critique of MacIntyre, Stout observes that feminism, though not a tradition in the sense of being defined by authoritative texts, a tradition in the sense of “’a not yet completed narrative,’ an argument about the goods that constitute the tradition.”
This argument, however, confuses traditions in general with the particular tradition MacIntyre has embraced or even with a relatively stringent version of that tradition. And it is false that feminism lacks an authoritative core. Just try defending Larry Summer’s views on mathematical intelligence, or a pro-life position on the abortion issue, around contemporary ‘mainstream’ feminists, and you will discover that the concept of history is alive and well. (There are, however, pro-life feminists.)
As Stout observes, “All discursive practices involve authority and deference to some extent. … The difference in a matter of how, when, and when someone defers or appeals to authority, not a matter of whether one does at all.” Even the most loosely structured traditions can make it clear that someone has stepped outside its limits. The New York Times defines a secular (and secularist) orthodoxy that is both all-pervasive and hard to resist.
All traditions have their canons of orthodoxy, and their internal debates, including debates between hard-liners are soft-liners. Yet traditions behave more like drops of mercury than like organisms: merging and splitting almost at will. Appeal to tradition is frequently appeal to the confluence of more than one tradition. In one of the clearer appeals to tradition in contemporary political argument, same-sex marriage opponents find it incredible that people at so many different times and places, whose beliefs and ways of life are in so many respects so different, could have been all wrong in their understanding of a crucial human institution Greco-Roman pederasts did not marry their boyfriends. That the emperor Nero is reported to have ‘married’ Sporus (whom he had had castrated) as a man and Doryphorus as a woman shows nothing about what was considered healthy or normal even in imperial Rome. The moral of the story was that, as emperor, Nero could do – or though he could do — whatever he wished.
Such people may be appealing to a sacred tradition going back to the origins of humanity and existing, often in distorted form, in all cultures. But even this formulation gives us great liberty in distinguishing ‘sacred’ tradition from its subsequent corruptions. There are aspects of ‘traditional marriage’ that no one would now defend, such as use of daughters, and to a lesser extent of sons, as counters in intra-familial politics.
Historically observable traditions change, or at least develop, often at least through an attempt to return to their origins. When we move from a more rigorous to a less rigorous rendering of the same tradition – say from pre-Vatican II to post-Vatican II Roman Catholicism — there is both gain and loss. The advantages of a greater flexibility in dealing with the problems of human existence have been much celebrated; the costs are increased confusion; and, for tradition faced with an aggressive cosmopolitan culture hostile to its understandings, the loss of the ability to resist externally generated pressure.
V.

Some understandings of tradition, however, do not allow for the possibility of development. If we refuse the immobilist option, we face the urgent but difficult issue of distinguishing development from decadence. We cannot appeal to the verdict of history to resolve the question: as J B. Schneewind puts it in a slightly different context, “If we must wait for it in order to know the solution to a problem, then that knowledge will have no role in the actual give and take of life.”
The American Revolution and the New Deal have been defended on traditionalist grounds. Even the French Revolution carried out the Bourbon tradition of the centralized absolute state: those of the revolutionaries’ decisions that Burke and his followers find most horrifying – the execution of the king and the nationalization of the Church – followed English precedents.
What is lacking in MacIntyre’s account is what may be called a philosophical ecclesiology – a philosophical understanding of the sort of historically embodied community that sustains a particular tradition. While attending to the historical data, the philosophical ecclesiologist will attempt to abstract conceptual and normative principles from this data – examining such concepts as schism, fidelity, fundamentalism, and the distinction between development and decadence. Decadence, as I understand it is a cultural phenomenon, that of a community that has lost the capacity to transmit itself, biologically and culturally.
VI.
I solve the problem of individuating traditions by citing traditions that are articulately defended as such in the contemporary world. Traditions so understood are historical entities that have founders, and which sometimes come to an end. An outsider should hesitate to express an opinion internal to an alien tradition, such as whether in Mormon theology God’s wife is a goddess. Hence I consider, among self-identified traditions, those with which I to some degree identify.
I now attempt a brief survey of the American legal and political tradition, whose outcome will support MacIntyre’s claim that we live among ruins. Further enquiry would require the study of the survival and break-up of a variety of other traditions, both religious and secular. In the early 1980s, MacIntyre identified himself with the American political tradition that combines procedural justice with republican virtue. By 1987, however, his question had become “How to Be a North American,” and Canadians and Mexicans, despite their very different political histories, were included in the community supporting the American tradition, along with Founding Fathers, Southern rebels, African-Americans, Native Americans, and Japanese and other immigrants. I do not see why North America, as opposed to say Euro-America or the Western hemisphere, is a useful way of specifying the social embodiment of a tradition.
In any event, I here focus on American political tradition, and its important legal component, which is inevitably linked to the history of a particular nation-state. There are three major components of this political tradition: our reliance on law and the Constitution as a legal document, the English-speaking liberal tradition founded by Milton and Locke, and the ‘Judeo-Christian tradition,’ on which we rely, as we once relied on ‘mainstream’ Protestantism, when we emphasize the need for public virtue.
If we treat Anglo-American liberalism as a tradition of dealing with value conflict, in a complex relationship with the ‘civil religion’ tradition of Hobbes and Rousseau, we can avoid the severity of MacIntyre’s judgment of contemporary moral discourse and hence also the question, how on MacIntyre’s showing could he possibly write his books? But neither MacIntyre nor anyone else has found a way of bridging the gap between the Evangelical and the Enlightenment wings of the American tradition, or addressing effectively the related conflict between the demand for a virtuous citizenry and our reliance on institutional checks and abstract rights to manage the corrupt nature of humanity.
The New Deal, however controversial in its day (and even to some extent today), was the product of a relatively culturally homogeneous society. The question of alcohol received a “states’ rights” solution. But the New Deal consensus has since been overtaken by cultural conflict, which becomes more intense larger the government’s role in our society becomes. As for American Republicanism, it is a jumble of elements in shifting alliance, the chief of which are moral traditionalism, libertarianism, corporate interest, technocracy, and American expansionism.
Americans appeal to the law, and especially the Constitution, to resolve the ambiguities of our political tradition and make it possible for adherents of divergent strands to live together. Even the least traditional elements in American society appeal to the Bill of Rights and the Fourteenth Amendment, which they sometimes seem to regard as the entire Constitution. One of the reasons for having a constitution, that it provides a framework for constrained conflict among persons whose interests and ideals are at variance, has been eroded.
No one thinks the Supreme Court is infallible. Even Rawls, for whom the Court embodies public reason, finds some of its decisions “profoundly dismaying” and would find some of its more recent decisions even more so.
The resulting evaluations vary immensely. James Boyd White has defended the abortion decision Planned Parenthood of Southeastern Pennsylvania v. Casey on neo-Burkean grounds, placing the Plurality Opinion among the classics of political theory ; while Michael Stokes Paulsen has called Casey “the worst constitutional decision all time.” While White sees Casey as remedying the defects of Roe v. Wade, Paulsen sees it as a further step into jurisprudential depravity. Apologies for Supreme Court decisions can be as divisive as criticisms of them. Mark Graber defends the Dred Scott decision, hitherto reprobated by Democrats and Republicans alike.
In the campaign financing case Citizens United we see the disarray of our constitutional tradition. No Justice, even the Chief Justice who had sold himself as a minimalist, adopted the obvious middle ground, that bona fide not-for-profit corporations engaging in political advocacy are entitled to immunity from governmental financial supervision. The majority Justices removed all significant restraints from corporate purchase of politicians; the minority would allow the Washington Establishment to use electoral regulations to harass critics of (as she had then become) Secretary of State Hilary Clinton. Culture wars issues such as abortion and same-sex marriage were not far from the surface of the case.
If just any Supreme Court decision can be rejected, then constitutional jurisprudence is a game without rules. But if whatever the Court decides to do can be provided with decent jurisprudential drapery, we are faced with the collapse of constitutional jurisprudence into power politics.
Xenophobic constitutional lawyers now argue that the provision of the Fourteenth Amendment conferring citizenship on “all persons born … in the United States” does not extend to the children of undocumented aliens, whom such jurists think of as akin to an invading army. But this proposal would not alter the fact that being an American is an inherited trait: being born of a citizen or documented alien is as much an accident of birth as being born the eldest son of a duke.
Authoritarian lawyers are prepared to argue that, as Richard Nixon once said, “When the President does it that means that it is not illegal.” Many people will say that some legal interpretations are beyond the pale and their advocates therefore ‘outside the mainstream’ of our jurisprudential tradition. As one writer says of the doctrine that Afghanistan was a failed state, whose captured soldiers were not entitled to the protections accorded prisoners of war, “There are legal opinions that are debatable. There are legal opinions that are wrong.” The verb to bork was coined to describe such judgments. But those who are borked and their friends frequently resist this judgment.
A Realist approach to such issues collapses not only the distinction between law and politics, but also that between politics and war. The only question is who decides? Moreover, issues like abortion, immigration and the war power, and the use of judicial power to stigmatize certain moral and political positions as unconstitutional, all have to do with our relationship with outsiders, both within and without the boundaries of America. They engage the distinction between friends and enemies, and the sovereign power to draw the line between them. Thus Carl Schmitt defended the Night of the Long Knives from a legal point of view; in his own language, “the act of the Leader was a genuine act of jurisdiction [Gerichtsbarkeit].” The gangster-style killing of Osama bin Laden makes this precedent apt.
The transformation of law in to politics, of politics into war (what is sometimes called ‘lawfare’), and of war into violence in the style of Rambo has its roots or correlates among elite scholars. Legal scholars across the jurisprudential spectrum now join the Critical Legal Studies Movement in holding that American law is an incoherent system, from which any position you please can be persuasively supported. On the ground, episodes such as the O. J. Simpson trial confirm the popular impression that American law is a farce. For very many Americans rightly believed, before the verdict, both that Simpson was guilty and that he would get off.
The mutual tolerance that underlies the American Constitutional order is not a transcendent requirement standing above all our other beliefs. The reasons for holding that tolerance does not stand outside the other goods of social life are also reasons for holding that militancy is not a transcendent requirement either Hence the survival of our traditions of political civility is an open question.
VII.
A tradition can die, as MacIntyre rightly insists, because it degenerates into inarticulate prejudices, or because – as has happened with some forms of Islamic thought, as well as with some forms of Thomism – it ceases to support further inquiry. But it can also die because it loses its ability to harmonize the consciences of its adherents. There is an important ambiguity in the concept of inquiry, which can mean anything from filling in tiny gaps to throwing the whole project into question (as MacIntyre does for some traditions).
As one commentator has put it, MacIntyre holds that
We should steer a middle path between the conservatism of Edmund Burke, who exalts tradition over and against rationality, and the liberalism/radicalism of a Concordet and other Enlightenment figures, who exalt abstract rationality over and against tradition.
The question I have been asking here whether such a middle ground exists.
Some traditions limit themselves accumulated human wisdom, others claim divine revelation, and others, like Thomism, invoke a mixture of the two. Likewise traditions sometimes speak abut human nature and flourishing (and the requirements of justice among human beings), sometimes about divine revelation, and sometimes about both. The problems I have found for the concept of tradition arise at both its human and its divine aspect.
The two-sided character of the concept of tradition reflects the concept of God. In MacIntyre’s own words, “theistic belief has a double aspect, at once problematic and unproblematic. As the former, it invites ruthless and systematic questioning. As the latter it requires devoted and unquestioning obedience.”
Doctrines such as the Trinity are “to be piously believed and not impiously questioned,” as St. Columban put it. Against those people who claim a patent or copyright on God, we must maintain that He is greater than any conceptual and normative structure we may be able to formulate. Yet God also addresses us – or at least is believed to address us – with quite definite requirements of belief and practice. We see this tension at work in the endless dialogue between creative and therefore dissident Catholic theologians and the Church’s doctrinal watchdogs (and consequently the tedious ‘police court’ theology assessing the authority of various documents and the resulting limits on dissent). Catholic authority is now searching for a “hermeneutics of continuity,” which avoids both repudiation of Vatican II as heretical and the claim that “spirit of Vatican II” authorizes limitless departures from past belief and practice.
There is no algorithm distinguishing legitimate developments of a tradition from degenerations of it. But considerations drawn from the need of the adherents of a tradition to maintain and transmit it to future generations can at least provide persuasive arguments.
We are not Platonic philosopher-kings (or queens) creating institutions de novo. Hence longstanding elements of our traditions should not easily be set aside. Luther’s ‘humanist’ opponents such as Erasmus and More were right to foresee that his theology entailed the fragmentation, since his day the extreme fragmentation, of Christendom. (Protestants do not view schism as gravely as do Catholics, but even many Protestants find the present chaos alarming.) There was something profoundly wrong, even apart from the issues of substance, about the way the liberals in the Anglican Communion pursued the issues of the ordination of women and open homosexuals. Extreme Presidentialism puts an end to the appeal of the American Constitutionalism, which controls power by dispersing it; they destroy our tradition in the attempt to save it.
The vitality of any tradition requires respectful attention to the convictions one’s fellow adherents, both living and dead. But we need not only to reflect on our traditions, but also to live them.
Philip E. Devine
Providence College

THE CONCEPT OF TRADITION

NATIONAL REVIEW …stands athwart history, yelling Stop.
William F. Buckley
The truth is that Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, Newton, the emancipation of women, Karl Marx, Balanchine ballet et al. don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history, and it is the white race, and it alone – its ideologies and inventions – which eradicates autonomous civilizations wherever it spreads, which has upset the ecological balance of the planet, and which now threatens the very existence of life itself.
Susan Sontag

Tradition is one of those words whose sense, reference and evaluative force depend on who uses it and why. The concept of tradition, as well as being conspicuous in contemporary debates about marriage, is also central to Alasdair MacIntyre’s work both as an educator and a cultural critic. It will be an essential resource for the development of whatever answer his admirers may give to the question, what is to be done? Many a revolution has been spurred by the desire to restore a tradition that the pursuit of external goods such as wealth has corrupted, but it remains to be seen whether MacIntyre’s philosophy supports this or any other form of political practice. Since MacIntyre like Marx is proposing a philosophy of practice, his inability to answer questions of application would mean that his philosophy had failed.
Samuel Scheffler lists a number of reasons why people value tradition, and are reasonable in doing so, for example that it makes it possible for people to find a home for themselves in time as well as space. But he neither cites MacIntyre nor responds, negatively or positively, to his concerns. And on the issue of most concern to me here he says only, “it is a truism that the traditions most likely to endure are those that develop successful techniques for balancing continuity and change.”
I.
Advocates of tradition argue that is an inescapable part of our reasoning about both theoretical and practical matters. Yet the concept of tradition in MacIntyre suffers from an ambiguity, one that also appears in many writers of a similar tendency such as Newman and, despite MacIntyre’s hostility to them both, Hume and Burke.
In Oedipus Rex Laius, fearing that his son will displace him has him exposed. But, however powerful fathers may be, and however ruthless they may be in suppressing their children, they always end up displaced. And the same is true of the status quo, however abstractly considered. For no set of rules, however detailed, can provide for all the conflicts that call forth divergent interpretations. The open-texture of our concepts means that our rules will always require interpretation, and the clashing interests and outlooks that exist in any society means that we will always face divergent interpretations of our inherited ideas. (An illuminating counter-example is the rules of chess.) And some of these interpretations will be innovative or even radical. Locke, while a key figure in the libertarian side of our tradition, can be interpreted as a social conservative, but arguments drawn from his writings can also undermine his traditional views and make the prohibitions on suicide and infanticide that inform his political theory entirely arbitrary. In Newman, the true course of development is discerned intuitively in a way that gives no guidance in case of real doubt. In any case, a tradition could not guide its adherents if it did not also constrain them; if it did not rule out some possibilities it would be useless.
II.
MacIntyre draws on the thought of Thomas Kuhn and Imre Lakatos to define tradition as an element of an ongoing practice of inquiry, that might include large revisions of inherited theory and practice. Another model for understanding a tradition is that of a craft; crafts like traditions can like develop or degenerate. And similar issues arise: does Andy Warhol develop the visual arts, or does he represent their degeneration? (Even Warhol’s admirers might draw the line at Maine lawn sculpture.)
Yet another model for tradition is a natural language, and so that the possibility that a person might become an adherent of, or at least understand, two different traditions is analogous to the possibility of his becoming bilingual. Wittgenstein provides an enlightening picture of language, and hence also of the broader tradition carried along with it.
Our language can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions made from various periods; and this surrounded by a multitude of new boroughs with straight regular streets and uniform houses.
Our city includes not only the stable elements Wittgenstein mentions, but also regions under construction, zones of conflict, and burnt-out districts not yet rebuilt. It also includes regions in decline: as Simon Blackburn puts it, “To paraphrase Wittgenstein, when we start to abandon a way of thought, the lights do not go out one by one, but darkness falls gradually over the whole.”
MacIntyre’s philosophy requires that we find a middle ground between ideas in Platonic heaven – as one might create Islam as a contribution to contemporary debates about hermeneutics – and entrenched social habits. Traditions in the relevant sense are historical-cultural facts as well as systems of belief and practice, and they could do what they do for human beings were they otherwise. All traditions have to be transmitted from generation to generation, and the process of doing so is emotionally fraught. Thus those features of our existence that liberals dismiss as accidents of birth, such as birth on certain territory or of certain sorts of parents, retain their relevance. Socrates, Plato, and Aristotle were Greeks looking for a common human nature, with equal emphasis on both sides of this proposition.
In any event, we can distinguish two kinds of inquiry. One consists in the attempt of adherents of a tradition to understand it more deeply and apply it to problem situations. The other form of inquiry steps, at least to some extent, outside the rival traditions and asks whether some tradition has exhausted itself, and whether some other tradition can solve the resulting problems more adequately.
At this point in the argument, we can exclude certain some of radicalism. Sontag’s claim to stand over and above the Western tradition and judge it as a whole is without foundation. (It is also characteristically Western.) In MacIntyre’s sage words,
Claims about hallucinations, illusion, distortion of thought, and the like can be made only from the standpoint of claims that the contrast can be clearly drawn between hallucinatory, illusory and distorted modes of perception or thought, on the one hand, and genuine perceptions of realty or rigorous or undistorted reflection and deliberation, on the other. Hence, to identify ideological distortion one must not be a victim of it oneself. The claim to a privileged exemption from such distortion seems to be presupposed when such distortion is identified in others.
But our problems arise, not from outside agitators, but within the practice of our society, and lead to disputes among those usually considered conservative.
What may be called the ‘integralist’ impulse tries to rid a cultural tradition of extraneous elements, at the risk of eliminating important truths; on the other hand the ‘cafeteria’ approach to intellectual issues, which picks and chooses among inherent ideas according to need or even mood, gives one every opportunity for adapting one’s beliefs to one’s purposes, even in the most cynical way.
III.
As MacIntyre has observed, “traditions are defined retrospectively,” often because some challenge makes their adherents aware that all of them, whatever their differences, are contributing to the same enterprise. Tradition is then further defined, by granting authoritative status to some documents of the past, as the New Testament accorded authority to what Christians call the Old Testament, or St. Thomas called Aristotle “the Philosopher,” contemporary scientific naturalists adduce Galileo and Darwin, or literary modernists look back to Joyce and Eliot.
Tradition is a feature of a community that unites author and reader, but there is a long-standing practice of ‘unorthodox’ reading. In consequence, the most important issues for a tradition arise from disagreements among adherents of the tradition itself, who are at least presumed to be able to apply its governing concepts competently. When adherents of a tradition disagree, they look for core elements in the tradition immune to change in terms of which disputes on the periphery can be adjudicated. But often different adherents find the core in different places, in which case we have two or more traditions where we previously had one – in other words a schism. Two sorts of situation we can be distinguished: a set of rules and principles fails to determine a result in some case, so that competent representatives of the same tradition reach different conclusions; and a tradition divides into two or more sub-traditions, which differ systematically in their conclusions. But these two situations are but different sides of the same phenomenon.
Macintyre’s most important contribution to the resulting discussion has been to forge a link between rationality and tradition. He points out that it is possible that a tradition might fail by its own standards, and thus encounter an incurable epistemological crisis. And adherents of such a tradition might discover that some other tradition better solves its problems than the tradition itself can do. Hence he has hopes of avoiding relativism.
Reflective traditionalism admits the need for change while insisting on the demands of continuity: Burke, after all, was Whig, not a Tory. Yet Burkean traditionalism threatens to become an empty rhetorical form, casting “decent drapery” or a “politic veil” over the results of power politics, whatever they might be. The revision of Buckley’s slogan sometimes proposed, “The dominant strain of conservative thought has stood athwart history, yelling “’Slow Down!’” keeps us on any slippery slope on which we might otherwise find ourselves, even that from Weimar to Hitler, so long as we go down slowly. Lacking on any version of the standard conservative or progressive account of tradition is the possibility that we need a change of direction.
Jeffrey Stout reads MacIntyre as demanding a highly structured tradition as the only alternative to conceptual and moral chaos. In his own language,
Equally essential to the rationality of a practice, according to MacIntyre’s account, is its embodiment in institutions that are capable of securing agreement on a doctrine of the human good (presumably by means of catechism directed at newcomers and a combination of magisterial suasion, discipline, and excommunication directed at dissidents).
Citing Susan Moller Okin’s “incisive” critique of MacIntyre, Stout observes that feminism, though not a tradition in the sense of being defined by authoritative texts, a tradition in the sense of “’a not yet completed narrative,’ an argument about the goods that constitute the tradition.”
This argument, however, confuses traditions in general with the particular tradition MacIntyre has embraced or even with a relatively stringent version of that tradition. And it is false that feminism lacks an authoritative core. Just try defending Larry Summer’s views on mathematical intelligence, or a pro-life position on the abortion issue, around contemporary ‘mainstream’ feminists, and you will discover that the concept of history is alive and well. (There are, however, pro-life feminists.)
As Stout observes, “All discursive practices involve authority and deference to some extent. … The difference in a matter of how, when, and when someone defers or appeals to authority, not a matter of whether one does at all.” Even the most loosely structured traditions can make it clear that someone has stepped outside its limits. The New York Times defines a secular (and secularist) orthodoxy that is both all-pervasive and hard to resist.
All traditions have their canons of orthodoxy, and their internal debates, including debates between hard-liners are soft-liners. Yet traditions behave more like drops of mercury than like organisms: merging and splitting almost at will. Appeal to tradition is frequently appeal to the confluence of more than one tradition. In one of the clearer appeals to tradition in contemporary political argument, same-sex marriage opponents find it incredible that people at so many different times and places, whose beliefs and ways of life are in so many respects so different, could have been all wrong in their understanding of a crucial human institution Greco-Roman pederasts did not marry their boyfriends. That the emperor Nero is reported to have ‘married’ Sporus (whom he had had castrated) as a man and Doryphorus as a woman shows nothing about what was considered healthy or normal even in imperial Rome. The moral of the story was that, as emperor, Nero could do – or though he could do — whatever he wished.
Such people may be appealing to a sacred tradition going back to the origins of humanity and existing, often in distorted form, in all cultures. But even this formulation gives us great liberty in distinguishing ‘sacred’ tradition from its subsequent corruptions. There are aspects of ‘traditional marriage’ that no one would now defend, such as use of daughters, and to a lesser extent of sons, as counters in intra-familial politics.
Historically observable traditions change, or at least develop, often at least through an attempt to return to their origins. When we move from a more rigorous to a less rigorous rendering of the same tradition – say from pre-Vatican II to post-Vatican II Roman Catholicism — there is both gain and loss. The advantages of a greater flexibility in dealing with the problems of human existence have been much celebrated; the costs are increased confusion; and, for tradition faced with an aggressive cosmopolitan culture hostile to its understandings, the loss of the ability to resist externally generated pressure.
V.

Some understandings of tradition, however, do not allow for the possibility of development. If we refuse the immobilist option, we face the urgent but difficult issue of distinguishing development from decadence. We cannot appeal to the verdict of history to resolve the question: as J B. Schneewind puts it in a slightly different context, “If we must wait for it in order to know the solution to a problem, then that knowledge will have no role in the actual give and take of life.”
The American Revolution and the New Deal have been defended on traditionalist grounds. Even the French Revolution carried out the Bourbon tradition of the centralized absolute state: those of the revolutionaries’ decisions that Burke and his followers find most horrifying – the execution of the king and the nationalization of the Church – followed English precedents.
What is lacking in MacIntyre’s account is what may be called a philosophical ecclesiology – a philosophical understanding of the sort of historically embodied community that sustains a particular tradition. While attending to the historical data, the philosophical ecclesiologist will attempt to abstract conceptual and normative principles from this data – examining such concepts as schism, fidelity, fundamentalism, and the distinction between development and decadence. Decadence, as I understand it is a cultural phenomenon, that of a community that has lost the capacity to transmit itself, biologically and culturally.
VI.
I solve the problem of individuating traditions by citing traditions that are articulately defended as such in the contemporary world. Traditions so understood are historical entities that have founders, and which sometimes come to an end. An outsider should hesitate to express an opinion internal to an alien tradition, such as whether in Mormon theology God’s wife is a goddess. Hence I consider, among self-identified traditions, those with which I to some degree identify.
I now attempt a brief survey of the American legal and political tradition, whose outcome will support MacIntyre’s claim that we live among ruins. Further enquiry would require the study of the survival and break-up of a variety of other traditions, both religious and secular. In the early 1980s, MacIntyre identified himself with the American political tradition that combines procedural justice with republican virtue. By 1987, however, his question had become “How to Be a North American,” and Canadians and Mexicans, despite their very different political histories, were included in the community supporting the American tradition, along with Founding Fathers, Southern rebels, African-Americans, Native Americans, and Japanese and other immigrants. I do not see why North America, as opposed to say Euro-America or the Western hemisphere, is a useful way of specifying the social embodiment of a tradition.
In any event, I here focus on American political tradition, and its important legal component, which is inevitably linked to the history of a particular nation-state. There are three major components of this political tradition: our reliance on law and the Constitution as a legal document, the English-speaking liberal tradition founded by Milton and Locke, and the ‘Judeo-Christian tradition,’ on which we rely, as we once relied on ‘mainstream’ Protestantism, when we emphasize the need for public virtue.
If we treat Anglo-American liberalism as a tradition of dealing with value conflict, in a complex relationship with the ‘civil religion’ tradition of Hobbes and Rousseau, we can avoid the severity of MacIntyre’s judgment of contemporary moral discourse and hence also the question, how on MacIntyre’s showing could he possibly write his books? But neither MacIntyre nor anyone else has found a way of bridging the gap between the Evangelical and the Enlightenment wings of the American tradition, or addressing effectively the related conflict between the demand for a virtuous citizenry and our reliance on institutional checks and abstract rights to manage the corrupt nature of humanity.
The New Deal, however controversial in its day (and even to some extent today), was the product of a relatively culturally homogeneous society. The question of alcohol received a “states’ rights” solution. But the New Deal consensus has since been overtaken by cultural conflict, which becomes more intense larger the government’s role in our society becomes. As for American Republicanism, it is a jumble of elements in shifting alliance, the chief of which are moral traditionalism, libertarianism, corporate interest, technocracy, and American expansionism.
Americans appeal to the law, and especially the Constitution, to resolve the ambiguities of our political tradition and make it possible for adherents of divergent strands to live together. Even the least traditional elements in American society appeal to the Bill of Rights and the Fourteenth Amendment, which they sometimes seem to regard as the entire Constitution. One of the reasons for having a constitution, that it provides a framework for constrained conflict among persons whose interests and ideals are at variance, has been eroded.
No one thinks the Supreme Court is infallible. Even Rawls, for whom the Court embodies public reason, finds some of its decisions “profoundly dismaying” and would find some of its more recent decisions even more so.
The resulting evaluations vary immensely. James Boyd White has defended the abortion decision Planned Parenthood of Southeastern Pennsylvania v. Casey on neo-Burkean grounds, placing the Plurality Opinion among the classics of political theory ; while Michael Stokes Paulsen has called Casey “the worst constitutional decision all time.” While White sees Casey as remedying the defects of Roe v. Wade, Paulsen sees it as a further step into jurisprudential depravity. Apologies for Supreme Court decisions can be as divisive as criticisms of them. Mark Graber defends the Dred Scott decision, hitherto reprobated by Democrats and Republicans alike.
In the campaign financing case Citizens United we see the disarray of our constitutional tradition. No Justice, even the Chief Justice who had sold himself as a minimalist, adopted the obvious middle ground, that bona fide not-for-profit corporations engaging in political advocacy are entitled to immunity from governmental financial supervision. The majority Justices removed all significant restraints from corporate purchase of politicians; the minority would allow the Washington Establishment to use electoral regulations to harass critics of (as she had then become) Secretary of State Hilary Clinton. Culture wars issues such as abortion and same-sex marriage were not far from the surface of the case.
If just any Supreme Court decision can be rejected, then constitutional jurisprudence is a game without rules. But if whatever the Court decides to do can be provided with decent jurisprudential drapery, we are faced with the collapse of constitutional jurisprudence into power politics.
Xenophobic constitutional lawyers now argue that the provision of the Fourteenth Amendment conferring citizenship on “all persons born … in the United States” does not extend to the children of undocumented aliens, whom such jurists think of as akin to an invading army. But this proposal would not alter the fact that being an American is an inherited trait: being born of a citizen or documented alien is as much an accident of birth as being born the eldest son of a duke.
Authoritarian lawyers are prepared to argue that, as Richard Nixon once said, “When the President does it that means that it is not illegal.” Many people will say that some legal interpretations are beyond the pale and their advocates therefore ‘outside the mainstream’ of our jurisprudential tradition. As one writer says of the doctrine that Afghanistan was a failed state, whose captured soldiers were not entitled to the protections accorded prisoners of war, “There are legal opinions that are debatable. There are legal opinions that are wrong.” The verb to bork was coined to describe such judgments. But those who are borked and their friends frequently resist this judgment.
A Realist approach to such issues collapses not only the distinction between law and politics, but also that between politics and war. The only question is who decides? Moreover, issues like abortion, immigration and the war power, and the use of judicial power to stigmatize certain moral and political positions as unconstitutional, all have to do with our relationship with outsiders, both within and without the boundaries of America. They engage the distinction between friends and enemies, and the sovereign power to draw the line between them. Thus Carl Schmitt defended the Night of the Long Knives from a legal point of view; in his own language, “the act of the Leader was a genuine act of jurisdiction [Gerichtsbarkeit].” The gangster-style killing of Osama bin Laden makes this precedent apt.
The transformation of law in to politics, of politics into war (what is sometimes called ‘lawfare’), and of war into violence in the style of Rambo has its roots or correlates among elite scholars. Legal scholars across the jurisprudential spectrum now join the Critical Legal Studies Movement in holding that American law is an incoherent system, from which any position you please can be persuasively supported. On the ground, episodes such as the O. J. Simpson trial confirm the popular impression that American law is a farce. For very many Americans rightly believed, before the verdict, both that Simpson was guilty and that he would get off.
The mutual tolerance that underlies the American Constitutional order is not a transcendent requirement standing above all our other beliefs. The reasons for holding that tolerance does not stand outside the other goods of social life are also reasons for holding that militancy is not a transcendent requirement either Hence the survival of our traditions of political civility is an open question.
VII.
A tradition can die, as MacIntyre rightly insists, because it degenerates into inarticulate prejudices, or because – as has happened with some forms of Islamic thought, as well as with some forms of Thomism – it ceases to support further inquiry. But it can also die because it loses its ability to harmonize the consciences of its adherents. There is an important ambiguity in the concept of inquiry, which can mean anything from filling in tiny gaps to throwing the whole project into question (as MacIntyre does for some traditions).
As one commentator has put it, MacIntyre holds that
We should steer a middle path between the conservatism of Edmund Burke, who exalts tradition over and against rationality, and the liberalism/radicalism of a Concordet and other Enlightenment figures, who exalt abstract rationality over and against tradition.
The question I have been asking here whether such a middle ground exists.
Some traditions limit themselves accumulated human wisdom, others claim divine revelation, and others, like Thomism, invoke a mixture of the two. Likewise traditions sometimes speak abut human nature and flourishing (and the requirements of justice among human beings), sometimes about divine revelation, and sometimes about both. The problems I have found for the concept of tradition arise at both its human and its divine aspect.
The two-sided character of the concept of tradition reflects the concept of God. In MacIntyre’s own words, “theistic belief has a double aspect, at once problematic and unproblematic. As the former, it invites ruthless and systematic questioning. As the latter it requires devoted and unquestioning obedience.”
Doctrines such as the Trinity are “to be piously believed and not impiously questioned,” as St. Columban put it. Against those people who claim a patent or copyright on God, we must maintain that He is greater than any conceptual and normative structure we may be able to formulate. Yet God also addresses us – or at least is believed to address us – with quite definite requirements of belief and practice. We see this tension at work in the endless dialogue between creative and therefore dissident Catholic theologians and the Church’s doctrinal watchdogs (and consequently the tedious ‘police court’ theology assessing the authority of various documents and the resulting limits on dissent). Catholic authority is now searching for a “hermeneutics of continuity,” which avoids both repudiation of Vatican II as heretical and the claim that “spirit of Vatican II” authorizes limitless departures from past belief and practice.
There is no algorithm distinguishing legitimate developments of a tradition from degenerations of it. But considerations drawn from the need of the adherents of a tradition to maintain and transmit it to future generations can at least provide persuasive arguments.
We are not Platonic philosopher-kings (or queens) creating institutions de novo. Hence longstanding elements of our traditions should not easily be set aside. Luther’s ‘humanist’ opponents such as Erasmus and More were right to foresee that his theology entailed the fragmentation, since his day the extreme fragmentation, of Christendom. (Protestants do not view schism as gravely as do Catholics, but even many Protestants find the present chaos alarming.) There was something profoundly wrong, even apart from the issues of substance, about the way the liberals in the Anglican Communion pursued the issues of the ordination of women and open homosexuals. Extreme Presidentialism puts an end to the appeal of the American Constitutionalism, which controls power by dispersing it; they destroy our tradition in the attempt to save it.
The vitality of any tradition requires respectful attention to the convictions one’s fellow adherents, both living and dead. But we need not only to reflect on our traditions, but also to live them.
Philip E. Devine
Providence College

THE CONCEPT OF TRADITION

NATIONAL REVIEW …stands athwart history, yelling Stop.
William F. Buckley
The truth is that Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, Newton, the emancipation of women, Karl Marx, Balanchine ballet et al. don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history, and it is the white race, and it alone – its ideologies and inventions – which eradicates autonomous civilizations wherever it spreads, which has upset the ecological balance of the planet, and which now threatens the very existence of life itself.
Susan Sontag

Tradition is one of those words whose sense, reference and evaluative force depend on who uses it and why. The concept of tradition, as well as being conspicuous in contemporary debates about marriage, is also central to Alasdair MacIntyre’s work both as an educator and a cultural critic. It will be an essential resource for the development of whatever answer his admirers may give to the question, what is to be done? Many a revolution has been spurred by the desire to restore a tradition that the pursuit of external goods such as wealth has corrupted, but it remains to be seen whether MacIntyre’s philosophy supports this or any other form of political practice. Since MacIntyre like Marx is proposing a philosophy of practice, his inability to answer questions of application would mean that his philosophy had failed.
Samuel Scheffler lists a number of reasons why people value tradition, and are reasonable in doing so, for example that it makes it possible for people to find a home for themselves in time as well as space. But he neither cites MacIntyre nor responds, negatively or positively, to his concerns. And on the issue of most concern to me here he says only, “it is a truism that the traditions most likely to endure are those that develop successful techniques for balancing continuity and change.”
I.
Advocates of tradition argue that is an inescapable part of our reasoning about both theoretical and practical matters. Yet the concept of tradition in MacIntyre suffers from an ambiguity, one that also appears in many writers of a similar tendency such as Newman and, despite MacIntyre’s hostility to them both, Hume and Burke.
In Oedipus Rex Laius, fearing that his son will displace him has him exposed. But, however powerful fathers may be, and however ruthless they may be in suppressing their children, they always end up displaced. And the same is true of the status quo, however abstractly considered. For no set of rules, however detailed, can provide for all the conflicts that call forth divergent interpretations. The open-texture of our concepts means that our rules will always require interpretation, and the clashing interests and outlooks that exist in any society means that we will always face divergent interpretations of our inherited ideas. (An illuminating counter-example is the rules of chess.) And some of these interpretations will be innovative or even radical. Locke, while a key figure in the libertarian side of our tradition, can be interpreted as a social conservative, but arguments drawn from his writings can also undermine his traditional views and make the prohibitions on suicide and infanticide that inform his political theory entirely arbitrary. In Newman, the true course of development is discerned intuitively in a way that gives no guidance in case of real doubt. In any case, a tradition could not guide its adherents if it did not also constrain them; if it did not rule out some possibilities it would be useless.
II.
MacIntyre draws on the thought of Thomas Kuhn and Imre Lakatos to define tradition as an element of an ongoing practice of inquiry, that might include large revisions of inherited theory and practice. Another model for understanding a tradition is that of a craft; crafts like traditions can like develop or degenerate. And similar issues arise: does Andy Warhol develop the visual arts, or does he represent their degeneration? (Even Warhol’s admirers might draw the line at Maine lawn sculpture.)
Yet another model for tradition is a natural language, and so that the possibility that a person might become an adherent of, or at least understand, two different traditions is analogous to the possibility of his becoming bilingual. Wittgenstein provides an enlightening picture of language, and hence also of the broader tradition carried along with it.
Our language can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions made from various periods; and this surrounded by a multitude of new boroughs with straight regular streets and uniform houses.
Our city includes not only the stable elements Wittgenstein mentions, but also regions under construction, zones of conflict, and burnt-out districts not yet rebuilt. It also includes regions in decline: as Simon Blackburn puts it, “To paraphrase Wittgenstein, when we start to abandon a way of thought, the lights do not go out one by one, but darkness falls gradually over the whole.”
MacIntyre’s philosophy requires that we find a middle ground between ideas in Platonic heaven – as one might create Islam as a contribution to contemporary debates about hermeneutics – and entrenched social habits. Traditions in the relevant sense are historical-cultural facts as well as systems of belief and practice, and they could do what they do for human beings were they otherwise. All traditions have to be transmitted from generation to generation, and the process of doing so is emotionally fraught. Thus those features of our existence that liberals dismiss as accidents of birth, such as birth on certain territory or of certain sorts of parents, retain their relevance. Socrates, Plato, and Aristotle were Greeks looking for a common human nature, with equal emphasis on both sides of this proposition.
In any event, we can distinguish two kinds of inquiry. One consists in the attempt of adherents of a tradition to understand it more deeply and apply it to problem situations. The other form of inquiry steps, at least to some extent, outside the rival traditions and asks whether some tradition has exhausted itself, and whether some other tradition can solve the resulting problems more adequately.
At this point in the argument, we can exclude certain some of radicalism. Sontag’s claim to stand over and above the Western tradition and judge it as a whole is without foundation. (It is also characteristically Western.) In MacIntyre’s sage words,
Claims about hallucinations, illusion, distortion of thought, and the like can be made only from the standpoint of claims that the contrast can be clearly drawn between hallucinatory, illusory and distorted modes of perception or thought, on the one hand, and genuine perceptions of realty or rigorous or undistorted reflection and deliberation, on the other. Hence, to identify ideological distortion one must not be a victim of it oneself. The claim to a privileged exemption from such distortion seems to be presupposed when such distortion is identified in others.
But our problems arise, not from outside agitators, but within the practice of our society, and lead to disputes among those usually considered conservative.
What may be called the ‘integralist’ impulse tries to rid a cultural tradition of extraneous elements, at the risk of eliminating important truths; on the other hand the ‘cafeteria’ approach to intellectual issues, which picks and chooses among inherent ideas according to need or even mood, gives one every opportunity for adapting one’s beliefs to one’s purposes, even in the most cynical way.
III.
As MacIntyre has observed, “traditions are defined retrospectively,” often because some challenge makes their adherents aware that all of them, whatever their differences, are contributing to the same enterprise. Tradition is then further defined, by granting authoritative status to some documents of the past, as the New Testament accorded authority to what Christians call the Old Testament, or St. Thomas called Aristotle “the Philosopher,” contemporary scientific naturalists adduce Galileo and Darwin, or literary modernists look back to Joyce and Eliot.
Tradition is a feature of a community that unites author and reader, but there is a long-standing practice of ‘unorthodox’ reading. In consequence, the most important issues for a tradition arise from disagreements among adherents of the tradition itself, who are at least presumed to be able to apply its governing concepts competently. When adherents of a tradition disagree, they look for core elements in the tradition immune to change in terms of which disputes on the periphery can be adjudicated. But often different adherents find the core in different places, in which case we have two or more traditions where we previously had one – in other words a schism. Two sorts of situation we can be distinguished: a set of rules and principles fails to determine a result in some case, so that competent representatives of the same tradition reach different conclusions; and a tradition divides into two or more sub-traditions, which differ systematically in their conclusions. But these two situations are but different sides of the same phenomenon.
Macintyre’s most important contribution to the resulting discussion has been to forge a link between rationality and tradition. He points out that it is possible that a tradition might fail by its own standards, and thus encounter an incurable epistemological crisis. And adherents of such a tradition might discover that some other tradition better solves its problems than the tradition itself can do. Hence he has hopes of avoiding relativism.
Reflective traditionalism admits the need for change while insisting on the demands of continuity: Burke, after all, was Whig, not a Tory. Yet Burkean traditionalism threatens to become an empty rhetorical form, casting “decent drapery” or a “politic veil” over the results of power politics, whatever they might be. The revision of Buckley’s slogan sometimes proposed, “The dominant strain of conservative thought has stood athwart history, yelling “’Slow Down!’” keeps us on any slippery slope on which we might otherwise find ourselves, even that from Weimar to Hitler, so long as we go down slowly. Lacking on any version of the standard conservative or progressive account of tradition is the possibility that we need a change of direction.
Jeffrey Stout reads MacIntyre as demanding a highly structured tradition as the only alternative to conceptual and moral chaos. In his own language,
Equally essential to the rationality of a practice, according to MacIntyre’s account, is its embodiment in institutions that are capable of securing agreement on a doctrine of the human good (presumably by means of catechism directed at newcomers and a combination of magisterial suasion, discipline, and excommunication directed at dissidents).
Citing Susan Moller Okin’s “incisive” critique of MacIntyre, Stout observes that feminism, though not a tradition in the sense of being defined by authoritative texts, a tradition in the sense of “’a not yet completed narrative,’ an argument about the goods that constitute the tradition.”
This argument, however, confuses traditions in general with the particular tradition MacIntyre has embraced or even with a relatively stringent version of that tradition. And it is false that feminism lacks an authoritative core. Just try defending Larry Summer’s views on mathematical intelligence, or a pro-life position on the abortion issue, around contemporary ‘mainstream’ feminists, and you will discover that the concept of history is alive and well. (There are, however, pro-life feminists.)
As Stout observes, “All discursive practices involve authority and deference to some extent. … The difference in a matter of how, when, and when someone defers or appeals to authority, not a matter of whether one does at all.” Even the most loosely structured traditions can make it clear that someone has stepped outside its limits. The New York Times defines a secular (and secularist) orthodoxy that is both all-pervasive and hard to resist.
All traditions have their canons of orthodoxy, and their internal debates, including debates between hard-liners are soft-liners. Yet traditions behave more like drops of mercury than like organisms: merging and splitting almost at will. Appeal to tradition is frequently appeal to the confluence of more than one tradition. In one of the clearer appeals to tradition in contemporary political argument, same-sex marriage opponents find it incredible that people at so many different times and places, whose beliefs and ways of life are in so many respects so different, could have been all wrong in their understanding of a crucial human institution Greco-Roman pederasts did not marry their boyfriends. That the emperor Nero is reported to have ‘married’ Sporus (whom he had had castrated) as a man and Doryphorus as a woman shows nothing about what was considered healthy or normal even in imperial Rome. The moral of the story was that, as emperor, Nero could do – or though he could do — whatever he wished.
Such people may be appealing to a sacred tradition going back to the origins of humanity and existing, often in distorted form, in all cultures. But even this formulation gives us great liberty in distinguishing ‘sacred’ tradition from its subsequent corruptions. There are aspects of ‘traditional marriage’ that no one would now defend, such as use of daughters, and to a lesser extent of sons, as counters in intra-familial politics.
Historically observable traditions change, or at least develop, often at least through an attempt to return to their origins. When we move from a more rigorous to a less rigorous rendering of the same tradition – say from pre-Vatican II to post-Vatican II Roman Catholicism — there is both gain and loss. The advantages of a greater flexibility in dealing with the problems of human existence have been much celebrated; the costs are increased confusion; and, for tradition faced with an aggressive cosmopolitan culture hostile to its understandings, the loss of the ability to resist externally generated pressure.
V.

Some understandings of tradition, however, do not allow for the possibility of development. If we refuse the immobilist option, we face the urgent but difficult issue of distinguishing development from decadence. We cannot appeal to the verdict of history to resolve the question: as J B. Schneewind puts it in a slightly different context, “If we must wait for it in order to know the solution to a problem, then that knowledge will have no role in the actual give and take of life.”
The American Revolution and the New Deal have been defended on traditionalist grounds. Even the French Revolution carried out the Bourbon tradition of the centralized absolute state: those of the revolutionaries’ decisions that Burke and his followers find most horrifying – the execution of the king and the nationalization of the Church – followed English precedents.
What is lacking in MacIntyre’s account is what may be called a philosophical ecclesiology – a philosophical understanding of the sort of historically embodied community that sustains a particular tradition. While attending to the historical data, the philosophical ecclesiologist will attempt to abstract conceptual and normative principles from this data – examining such concepts as schism, fidelity, fundamentalism, and the distinction between development and decadence. Decadence, as I understand it is a cultural phenomenon, that of a community that has lost the capacity to transmit itself, biologically and culturally.
VI.
I solve the problem of individuating traditions by citing traditions that are articulately defended as such in the contemporary world. Traditions so understood are historical entities that have founders, and which sometimes come to an end. An outsider should hesitate to express an opinion internal to an alien tradition, such as whether in Mormon theology God’s wife is a goddess. Hence I consider, among self-identified traditions, those with which I to some degree identify.
I now attempt a brief survey of the American legal and political tradition, whose outcome will support MacIntyre’s claim that we live among ruins. Further enquiry would require the study of the survival and break-up of a variety of other traditions, both religious and secular. In the early 1980s, MacIntyre identified himself with the American political tradition that combines procedural justice with republican virtue. By 1987, however, his question had become “How to Be a North American,” and Canadians and Mexicans, despite their very different political histories, were included in the community supporting the American tradition, along with Founding Fathers, Southern rebels, African-Americans, Native Americans, and Japanese and other immigrants. I do not see why North America, as opposed to say Euro-America or the Western hemisphere, is a useful way of specifying the social embodiment of a tradition.
In any event, I here focus on American political tradition, and its important legal component, which is inevitably linked to the history of a particular nation-state. There are three major components of this political tradition: our reliance on law and the Constitution as a legal document, the English-speaking liberal tradition founded by Milton and Locke, and the ‘Judeo-Christian tradition,’ on which we rely, as we once relied on ‘mainstream’ Protestantism, when we emphasize the need for public virtue.
If we treat Anglo-American liberalism as a tradition of dealing with value conflict, in a complex relationship with the ‘civil religion’ tradition of Hobbes and Rousseau, we can avoid the severity of MacIntyre’s judgment of contemporary moral discourse and hence also the question, how on MacIntyre’s showing could he possibly write his books? But neither MacIntyre nor anyone else has found a way of bridging the gap between the Evangelical and the Enlightenment wings of the American tradition, or addressing effectively the related conflict between the demand for a virtuous citizenry and our reliance on institutional checks and abstract rights to manage the corrupt nature of humanity.
The New Deal, however controversial in its day (and even to some extent today), was the product of a relatively culturally homogeneous society. The question of alcohol received a “states’ rights” solution. But the New Deal consensus has since been overtaken by cultural conflict, which becomes more intense larger the government’s role in our society becomes. As for American Republicanism, it is a jumble of elements in shifting alliance, the chief of which are moral traditionalism, libertarianism, corporate interest, technocracy, and American expansionism.
Americans appeal to the law, and especially the Constitution, to resolve the ambiguities of our political tradition and make it possible for adherents of divergent strands to live together. Even the least traditional elements in American society appeal to the Bill of Rights and the Fourteenth Amendment, which they sometimes seem to regard as the entire Constitution. One of the reasons for having a constitution, that it provides a framework for constrained conflict among persons whose interests and ideals are at variance, has been eroded.
No one thinks the Supreme Court is infallible. Even Rawls, for whom the Court embodies public reason, finds some of its decisions “profoundly dismaying” and would find some of its more recent decisions even more so.
The resulting evaluations vary immensely. James Boyd White has defended the abortion decision Planned Parenthood of Southeastern Pennsylvania v. Casey on neo-Burkean grounds, placing the Plurality Opinion among the classics of political theory ; while Michael Stokes Paulsen has called Casey “the worst constitutional decision all time.” While White sees Casey as remedying the defects of Roe v. Wade, Paulsen sees it as a further step into jurisprudential depravity. Apologies for Supreme Court decisions can be as divisive as criticisms of them. Mark Graber defends the Dred Scott decision, hitherto reprobated by Democrats and Republicans alike.
In the campaign financing case Citizens United we see the disarray of our constitutional tradition. No Justice, even the Chief Justice who had sold himself as a minimalist, adopted the obvious middle ground, that bona fide not-for-profit corporations engaging in political advocacy are entitled to immunity from governmental financial supervision. The majority Justices removed all significant restraints from corporate purchase of politicians; the minority would allow the Washington Establishment to use electoral regulations to harass critics of (as she had then become) Secretary of State Hilary Clinton. Culture wars issues such as abortion and same-sex marriage were not far from the surface of the case.
If just any Supreme Court decision can be rejected, then constitutional jurisprudence is a game without rules. But if whatever the Court decides to do can be provided with decent jurisprudential drapery, we are faced with the collapse of constitutional jurisprudence into power politics.
Xenophobic constitutional lawyers now argue that the provision of the Fourteenth Amendment conferring citizenship on “all persons born … in the United States” does not extend to the children of undocumented aliens, whom such jurists think of as akin to an invading army. But this proposal would not alter the fact that being an American is an inherited trait: being born of a citizen or documented alien is as much an accident of birth as being born the eldest son of a duke.
Authoritarian lawyers are prepared to argue that, as Richard Nixon once said, “When the President does it that means that it is not illegal.” Many people will say that some legal interpretations are beyond the pale and their advocates therefore ‘outside the mainstream’ of our jurisprudential tradition. As one writer says of the doctrine that Afghanistan was a failed state, whose captured soldiers were not entitled to the protections accorded prisoners of war, “There are legal opinions that are debatable. There are legal opinions that are wrong.” The verb to bork was coined to describe such judgments. But those who are borked and their friends frequently resist this judgment.
A Realist approach to such issues collapses not only the distinction between law and politics, but also that between politics and war. The only question is who decides? Moreover, issues like abortion, immigration and the war power, and the use of judicial power to stigmatize certain moral and political positions as unconstitutional, all have to do with our relationship with outsiders, both within and without the boundaries of America. They engage the distinction between friends and enemies, and the sovereign power to draw the line between them. Thus Carl Schmitt defended the Night of the Long Knives from a legal point of view; in his own language, “the act of the Leader was a genuine act of jurisdiction [Gerichtsbarkeit].” The gangster-style killing of Osama bin Laden makes this precedent apt.
The transformation of law in to politics, of politics into war (what is sometimes called ‘lawfare’), and of war into violence in the style of Rambo has its roots or correlates among elite scholars. Legal scholars across the jurisprudential spectrum now join the Critical Legal Studies Movement in holding that American law is an incoherent system, from which any position you please can be persuasively supported. On the ground, episodes such as the O. J. Simpson trial confirm the popular impression that American law is a farce. For very many Americans rightly believed, before the verdict, both that Simpson was guilty and that he would get off.
The mutual tolerance that underlies the American Constitutional order is not a transcendent requirement standing above all our other beliefs. The reasons for holding that tolerance does not stand outside the other goods of social life are also reasons for holding that militancy is not a transcendent requirement either Hence the survival of our traditions of political civility is an open question.
VII.
A tradition can die, as MacIntyre rightly insists, because it degenerates into inarticulate prejudices, or because – as has happened with some forms of Islamic thought, as well as with some forms of Thomism – it ceases to support further inquiry. But it can also die because it loses its ability to harmonize the consciences of its adherents. There is an important ambiguity in the concept of inquiry, which can mean anything from filling in tiny gaps to throwing the whole project into question (as MacIntyre does for some traditions).
As one commentator has put it, MacIntyre holds that
We should steer a middle path between the conservatism of Edmund Burke, who exalts tradition over and against rationality, and the liberalism/radicalism of a Concordet and other Enlightenment figures, who exalt abstract rationality over and against tradition.
The question I have been asking here whether such a middle ground exists.
Some traditions limit themselves accumulated human wisdom, others claim divine revelation, and others, like Thomism, invoke a mixture of the two. Likewise traditions sometimes speak abut human nature and flourishing (and the requirements of justice among human beings), sometimes about divine revelation, and sometimes about both. The problems I have found for the concept of tradition arise at both its human and its divine aspect.
The two-sided character of the concept of tradition reflects the concept of God. In MacIntyre’s own words, “theistic belief has a double aspect, at once problematic and unproblematic. As the former, it invites ruthless and systematic questioning. As the latter it requires devoted and unquestioning obedience.”
Doctrines such as the Trinity are “to be piously believed and not impiously questioned,” as St. Columban put it. Against those people who claim a patent or copyright on God, we must maintain that He is greater than any conceptual and normative structure we may be able to formulate. Yet God also addresses us – or at least is believed to address us – with quite definite requirements of belief and practice. We see this tension at work in the endless dialogue between creative and therefore dissident Catholic theologians and the Church’s doctrinal watchdogs (and consequently the tedious ‘police court’ theology assessing the authority of various documents and the resulting limits on dissent). Catholic authority is now searching for a “hermeneutics of continuity,” which avoids both repudiation of Vatican II as heretical and the claim that “spirit of Vatican II” authorizes limitless departures from past belief and practice.
There is no algorithm distinguishing legitimate developments of a tradition from degenerations of it. But considerations drawn from the need of the adherents of a tradition to maintain and transmit it to future generations can at least provide persuasive arguments.
We are not Platonic philosopher-kings (or queens) creating institutions de novo. Hence longstanding elements of our traditions should not easily be set aside. Luther’s ‘humanist’ opponents such as Erasmus and More were right to foresee that his theology entailed the fragmentation, since his day the extreme fragmentation, of Christendom. (Protestants do not view schism as gravely as do Catholics, but even many Protestants find the present chaos alarming.) There was something profoundly wrong, even apart from the issues of substance, about the way the liberals in the Anglican Communion pursued the issues of the ordination of women and open homosexuals. Extreme Presidentialism puts an end to the appeal of the American Constitutionalism, which controls power by dispersing it; they destroy our tradition in the attempt to save it.
The vitality of any tradition requires respectful attention to the convictions one’s fellow adherents, both living and dead. But we need not only to reflect on our traditions, but also to live them.
Philip E. Devine
Providence College

IS INCEST NEXT?[1]

In April, 2003 then Senator Rick Santorum said in an interview, “If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.” Gay rights advocate David Smith responded with indignation,”The outrageous thing … is that he put being gay on the same legal and moral plane as a person who commits incest.”[2]    

Ideas have consequences, though they are not the only things that have consequences, and their logical and social consequences are distinct.   The plausibility of a slippery slope argument in one context depends in part how slippery the slope proves elsewhere.  We all have an understanding of the straight and narrow, even those of us who neither believe in it nor practice it. Life-style liberals seek the greatest possible freedom for uncustomary behavior, without going all the way to social chaos; their view inevitably raises the question of limits.  People who depart to some degree from this understanding resent their association with people who go further still.  Those who defend incest between adults, for example, are likely to condemn vehemently incest with children, or incestuous reproduction.[3]      

So far there is no incest liberation movement outside the fringes of the World Wide Web,[4] with the exception of the attempts of ‘kissing cousins’ to gain legitimacy.[5]  Likewise, pedophile liberation has been firmly relegated to the closet.    Yet once inherited prohibitions on sexual behavior are thrown into question, we must face the question, whether this questioning should (or can) stop at the boundaries of the incest prohibition or that of the prohibition on sex with children or at that of sexually charged forms of torture.    There have been significant attempts to bring pedophilia out of the closet.  The poet and homosexual spokesman Allen Ginsberg joined the North American Man Boy Love Association, justifying his action on the unconvincing ground that he was defending their freedom of speech,[6]  and pedophilia continues to have its defenders in the psychological profession.[7]    Hence we cannot take an incest prohibition as an immutable feature of our society, concerning which normative reflection is unnecessary.

I.

Incest is commonly thought to be a universal taboo, but the facts on the ground are complicated.  .  I examine legal, historical, and ethnographical data to discover what ‘we’ think about such issues and each reader should ask him or herself whether these judgments seem sound.  My method will be a form of public phenomenology, suggested by J. L. Austin and the later Wittgenstein, one which asks, not how things appear to me, but how they appear to us – though the deliverances of the ‘wisdom of repugnance’ are always open to correction if sufficiently powerful reasons for changing them are put forward.  There are, I am suggesting certain common human moral responses, though these take different, and sometimes distorted, forms in various cultural settings.

We must distinguish rules about sex from rules about marriage and rules about procreation.  Not only does sex take place outside marriage, and without even possible reproductive consequences; there is reason to suspect that the incestuous marriages of royalty such the Ptolmeys were unconsummated and thus without reproductive consequences.[8]  I here take sex to be the central question in discussions of incest, not marriage or reproduction.   But the availability of artificial insemination and other forms of assisted reproduction means that there can be reproductive incest and reproductive adultery just as much as reproductive rape.

Incest is also tricky because, though the prohibition makes a strong claim to supraconventional validity, the details are a matter of convention.  There may be some relationships – between mother and son, or perhaps even between parents and children – that are incestuous regardless of social practice.  But how we are to know when this sort of thing is the case I do not see.  

At least so far as adult incest is concerned, we must admit an element of convention in any prohibition, and even the age of consent is itself largely conventional. This is by no means a lethal concession:  property is largely a conventional matter, but theft is wrong.  Nor does it mean that supra-conventional principles are not at work in applying these conventions.  St. Thomas Aquinas held that, in situations of extreme need, all goods are in common, though he also held that there are moral prohibitions that hold regardless of consequences or circumstances, including the mores of society.   In contemporary pluralistic societies the answer to the question, what is incest? will vary from subculture to subculture.  

Tell me whether you regard sex between a brother-in law his sister-in-law, between father-in-law and daughter-in-law, between siblings by adoption, between stepsister and stepbrother, between a man and his ex-wife’s mother, or between a man and his former girlfriend’s adopted daughter, is incestuous, and I will tell you how you understand kinship relations.[9]  The same question can be asked of relations between first cousins,[10] between siblings by adoption, or between a brother and a sister raised separately. Relations between stepfather and stepdaughter are certainly incestuous, but there is some doubt about those between stepmother and stepson, though these were strongly prohibited in the ancient world.  A further question is whether marriage matters:  is a woman who seduces her daughter’s boyfriend less bad than one who seduces her daughter’s husband?   There are also some important metaphorical extensions of the idea of incest: the Romans regarded sexual intercourse by a vestal virgin as incestuous (H 82), and the stricter sort of academic feels the same w ay about sex between students and teachers.

Homosexual incest now figures only as “a potent predisposing factor in extreme pathological behavior,”[11] and the lesbian variety in pornography.  Françoise Héritier argues that mother-daughter relations are the most fundamental variety of incest (H 306-07).   At least as extreme a case is sexual relations with one’s identical twin or clone.   Long before this point, sick and creepy have become more appropriate language than morally wrong. I suspect that women the mother-daughter case, and men find the cloning case, creepier.   The one sort of incest implicates the loss self in the devouring Mother, the other the quintessence of narcissism. How masturbation fits into this picture is a question worth asking. 

 II.

            There are two broad families of theory of the incest prohibition:  biological and social.  There are legitimate worries about defective offspring arising from frequent mating among close relatives (A chap. 2), and many species of animal avoid inbreeding (A 89-94), but such considerations do not support the conventional prohibition on incest.

The undesirability of inbreeding does not apply to people beyond the age of reproduction, or to those who reliably use contraception or otherwise avoid procreation.  Nor does homosexual incest, or intercourse between stepparent and stepchild, or between relatives by adoption, pose any genetic risk.  Hence we must find the source of the prohibition against incest in the structure of social relations.

            The social theory of incest calls for an answer to a triple0barreled question, why is incest nearly everywhere prohibited, why is this prohibition sometimes violated, and would we better or worse off without it?   Explanatory theories may be relevant to, but do not settle, normative questions.  To be sure there are explanations whose effect is to debunk the prohibition, such as Lord Raglan’s contention that it arose from fear of mysterious origin of having sex with a woman on the same side of the stream as oneself.[12]   The same might seem to be true of Héritier’s contention that incest prohibitions arise from archaic beliefs concerning the circulation of bodily fluids, though bodily fluids might be taken as metaphorical expressions of social or genetic relations (H.188-197, 209-224, and chap.7).     In any event, it is possible that our ancestors had good reasons for their prohibitions.

The ethnologist W. Arens concludes that, while the avoidance of inbreeding is natural, incestuous behavior is the product of culture.   Following Rousseau, he speaks of “an unavoidable conclusion about the human capacity to define and engage in evil” (A 15).   Culture brings with it “hypersexuality, which allows for sex for its own sake or as a medium for conveying other messages about social relations” (A 153). Hypersexuality also leads to forms of sexual behavior which cannot lead to offspring, as well as to ones whose fulfillment in offspring is undesirable.  Also hypersexuality makes possible sexual prohibitions, including prohibitions on forms of incest that cannot produce offspring, or which carry with them no genetic risk. 

Arens’ version of the doctrine of the noble savage, who neither forbids incest nor practices it, is not convincing.  When my neutered male cat attempts futilely to penetrate his spayed sister, he is not attempting incest.  Nor is the prairie vole, which in its natural setting avoids inbreeding (A 93), avoiding incest.  Like theft, adultery, and genocide, incest is a notion that applies only to the behavior of morally accountable entities.  Even in the most custom-ridden society, there is a difference between what is unusual and what is prohibited, and legislators do not bother to prohibit what no one shows any signs of doing.   

III.

Our philosophical, theological, and jurisprudential tradition does not provide a clear answer to the question, what is wrong with incest? or even a clear narrative of progress or decay in our understanding of the prohibition.  Nor does the ethnographic data provide a clear answer. If we construct a narrative of progressive liberation from taboos, we must fact that even the most depraved forms of torture will benefit from it; if we call for a return to the good old days when fundamental taboos were respected, we will end supporting such things as female infanticide.  But the data do supply some reference points for discussion, and some intuitive judgments from which we might extract an account.    For the ‘gut’ reactions of human beings, though fallible, are not totally irrational.

Some ethnologists deny that there is a common essence among the various social phenomena called the incest prohibition.[13]  Among the Mossi of the Upper Volta (now Burkina Faso), incest is regarded as absurd, but without further natural or supernatural consequences; whereas among the Jalé of New Guinea incest is broadly defined and punished by death or by a degrading ordeal (A 6).  In contemporary India, there is no criminal law against incest, but there are honor killings of incestuous spouses (again broadly defined).[14]   In groups that institutionalize homosexuality among unmarried men incest prohibitions paralleling to those which govern heterosexual intercourse and marriage obtain (A 11).  But David M. Schneider reports that “the ideal inseminator is the boy’s father’s sister’s husband” – in other words his uncle, though not by blood (cited in H 235). 

As the title of Arens’ book on incest, Original Sin, indicates, ethnology often borders on theology.   The Hebrew Bible prohibits incest (Leviticus 18:6ff.)   The antinomian tendencies of some passages in the New Testament (Matthew 12:1-6, Mark 2:23-28, Luke 6:1-5, Acts 10:15; 11.9) call the incest  prohibition in question along with Sabbath regulations, dietary laws, other sexual prohibitions, and all other moral rules.  But St. Paul resists such antinomian tendencies — interestingly, the most pertinent case is not blood incest but relations with a stepmother (I Corinthians 5). 

Plato (Republic 461e, Laws 863 a ff.) and Aristotle (Politics Bk. II) take a prohibition on incest for granted on the way to discussing other matters.   Aristotle is troubled by even a chaste romantic relationship between close male relatives (Politics 1262a32ff.),   St, Augustine (City of God Bk. XV, chap. 16)[15] makes five points of continuing relevance.  Incest was necessary when the human race was so few in numbers that the alternative was dying out, but is unacceptable now.  Forms of sexual relationship permitted by law may nonetheless be discouraged by custom.  Out-breeding is desirable because it multiplies relationships of friendship.   In the case of incestuous procreation, “one man would …be both father and father-in-law, and uncle to his own children.” And he appeals to “a natural and praiseworthy shamefacedness which restrains us from desiring that connection … with anyone to whom consanguinity bids us to render respect.”

            I take St. Thomas Aquinas as representing the best reflections of the pre-modern West, and the most serious attempt to synthesize ideas from Greek and from Hebrew sources.   Incest is a problem for him because he does not manifest St. Augustine’s obsessive concern with controlling lust at all costs. And incest is in one sense at least natural in a way homosexual practices or masturbation is not.   For one could not tell, just by looking at a couple, that they were engaging in incest.  And, in the earliest stages of humanity incestuous unions were necessary to the survival of the species. The discussion in the Summa Contra Gentiles (Bk. III, chap. 125) emphasizes marriage rather than sex, although St. Thomas believed that sex outside of marriage was sinful.  Moreover, he allows for dispensation from the incest prohibition both by human and by divine authority (para. 10). So far as I can see, even father-daughter unions might benefit from such dispensations.   

In the Summa Theologiae, St. Thomas adds an intriguing reason: 

Since it is natural that a man should have a liking for a woman of his kindred, if to this be added the love that has its origin in venereal intercourse, his love would be too ardent and would become a very great incentive to lust: and this is contrary to chastity. (IIa IIae Q. 154, art. 9).[16] 

Contemporary moral theologians do little better: Germain Grisez limits himself to saying that “all incest violates family communion.”[17]   Three other Catholic moralists influenced by Grisez add to his account the following questionable sentence:  “Incest is a sin of lust, an act in which pleasure is pursued, with gross disregard for the values toward which of its nature and of divine will sexuality is essentially ordered.”[18]  But incestuous sex can express love, unite the two sexes, and produce offspring.

Kant waffles on the question, whether incest is a crime of the flesh against nature.[19]    Jerome Neu[20]  correctly points to the value of incest taboos.   If a father develops sexual feelings toward his pubescent daughter, he needs not moral reasoning but a stern prohibition to keep his desires in check.  But Neu misses an important feature of kinship relations, and hence also of incest prohibitions:  once a person stands in such a relationship to me, he stands in it forever.  A son estranged from his father is still his father’s son.   If so, though Oedipus may plead ignorance, he is still “objectively” guilty of incest as well as parricide.   Likewise, father-daughter incest remains horrible even if the father is eighty and the daughter twenty.   And, even if we grant that siblings raised apart can couple without incest, siblings raised together are bound by the taboo forever. 

Conventional definitions of incest, and the degree of stigma attached to incestuous behavior, vary widely. Incest remains a felony in almost every State,[21] and its best-known though not necessarily its most frequent form (sex between a father and his underage daughter) is strongly reprobated.   Since this form of incest involves children, it is objectionable on other grounds.   In Rhode Island, though adult incest is not a crime,  incestuous marriages are denied recognition.[22]  This means that incestuous unions are in the same legal boat as homosexual relationships in many jurisdictions, and, as a matter of practice, polygamous relationships in Utah.[23]  They are neither regarded as criminal nor given full legitimation.  .  In Michigan, Rhode Island, and New Jersey, none of which criminalize incest between adults,[24] open incest is not common.  Laws prohibiting marriage between siblings by adoption have been struck down in Colorado.[25]  Recently there was a controversial prosecution of a brother-sister relationship in Germany;[26] the judiciary upheld the law against constitutional challenge.[27]     In practice, incest laws are usually invoked to prosecute incestuous fathers and stepfathers, where the daughter or stepdaughter is below or near the age of consent.[28]   In Florida, the definition of incest is limited to vaginal intercourse, with the result that gay incest is now legal.[29]  While Massachusetts defines incest in ways that include homosexual practices, its definition of consanguinity refers only to opposite sex relationships.[30]   

IV.

It is now time to move from a review of the literature to the normative question.  Are prohibitions on incest justifiable, and if so how should we resolve disputed cases?  We begin with the horror that incest evokes in many minds.  It is characteristic of the debate about sexual issues – at least since Lord Devlin’s invocation of “intolerance, indignation and disgust”[31] — that traditional moral views are treated as unreasoned feelings that nonetheless may have some legitimate weight in political and legal reasoning.  Thus Judge Richard Posner, who denies sex any inherent moral meaning, concedes,

If after acquainting himself with all the facts bearing on the sexual perversions, as he may choose to regard them, a person is left with so profound a revulsion that he desires the state to step in and punish the practitioners and is willing to bear his fair share of the public expense of such punishment, I have nothing further to say to him except that he ought to reread chapter 4 of On Liberty.[32]

Incest, however, is not a strictly speaking a perversion and On Liberty is not holy writ.  Nor, I suspect, would even Mill have been prepared positively to evaluate every sexual possibility, if he had had the imagination to envisage them all.

We ought neither disallow our revulsion at incest nor decline to examine it for underlying reasons.  Incest creates discord in the family, and impairs its capacity to form the next generation.  So, however, do domestic violence, quarrels with in-laws, too lax or too rigid discipline, adultery by one or both of the parents, and divorce.   But none of these is subject to as rigid a social prohibition as is incest.  Moreover to some unknown degree the bad effects of incest arise from the prohibition itself.   

We are here moving in a domain where many people’s exercise of moral imagination will be uncomfortable.  Such discomfort tells us something:  a world in which incest (or bestiality or pedophilia) was widely and openly practiced would be a world very different from the present one — one in which the context of our choices, even if we were not ourselves inclined to such practices, would be different from our own, in a perhaps worse way    Such considerations are important, but not decisive.  For people are squeamish about interracial sex and homosexual practices as well as about incest. 

Social, and especially kinship, relations have a grammar, analogous to the grammar of language. We can speak instead of the metaphysics of social relations, provided we do not forget that supraconventional constraints come dressed in conventional garb, that we may not know important natural necessities, and that the very existence of creatures like ourselves is a contingent matter. [33]

Unlike overtly consequentialist or Kantian principles of sexual morality, or applications of general principles forbidding violence and deceit to sexual contexts, that one’s mother or daughter (or father or son) is out of bounds sexually is a grammatical remark.  If an aunt makes advances to her nephew, his spontaneous response is likely to be “But you’re my aunt!”  (Therefore, to spell out the remark more fully, you cannot be my lover.)   We ‘balk’ at expressions in which words fail to fit together appropriately, [34]  and we in similar way balk at certain sexual relationships  In the cases of extreme incest I mentioned earlier, between mother and daughter or parent organism and clone, we encounter the meltdown of the grammar of  both sexual and  social relations.   Though we cannot draw a precise line between nature and convention, at some point our balking represents the recoil of human nature at what violates it.

When human nature is violated, bad consequences are likely to follow.  Thus the existence of bad consequences is evidence of a violation of human nature. There may be consequentialist or other extrinsic reasons for having a social-sexual grammar or for having the particular grammar we have.  Fear of the genetic consequences of inbreeding may make us less accepting of relations between cousins.   But these considerations are effective only to the extent they work through the grammar of kinship relations already in place; one cannot just make up taboos on then ground that they are socially useful.    

In some respects the grammar of familial relations is like the laws of property, or like the allocation of powers among officials in a legal system.  Property relations can be, however, far distant from face-to-face human interactions, as when a corporation owns stock in another corporation (though even such relations sometimes have a powerful impact on the lives of individual human beings).[35]  There are in any case distinctive and powerful emotions associated with violations of the family, commonly expressed in the language of defilement.   In consequence, the grammar of kinship relations is harder to change deliberately than that of property or constitutional structures, though it does, of course change.

Atavistic emotions are not engaged by offenses against property unless they involve such things as the invasion of one’s home.  As for claims of abuse of power by officials, and of their failure to perform their official duties, these are the usual accompaniment of power struggle, and the accompanying emotions are less tangled than those aroused by incest   Nonetheless, the American Constitution has a kind of familial aura associated with the Founding Fathers, and the language of defilement comes into play when it comes to outright bribery.[36].  

The grammar of social relations is transmitted largely through Myths; in the case of incest the most important Myth is that of Oedipus, though that of Hamlet is also pertinent.   (A Myth is not a lie:  it can even be historically accurate, as for example the stories of Paul Revere’s ride and the sinking of Titanic.)  Unfortunately perceptions vary:  some people ‘balk’ at the notion of time travel or same-sex marriage; others do not. Likewise, some people balk the notion of marriage or a sexual relationship with a cousin, and others do not.  Linguistic intuitions and moral intuition, though distinct, are akin, especially when the concept in question, like marriage, is essentially contested.  

It is characteristic of the grammar of kinship that the relations in question do not change. Unmarried lovers can marry; a spouse may die, and a previously adulterous relationship then will cease to be so.  But once near kin, always near kin. One can on the other hand, become near kin, by adoption or by marriage; in this respect kinship relations are like the voting age or the age of eligibility for Social Security.  

Non-contractual relationships such as kinship are required by human vulnerability and the protection of those whose bargaining power is poor, and concern to protect their grammar is a natural consequence.  When the grammar of kinship is disrupted, we experience a form of unease that differs from that produced by other behavior of which we may disapprove.  And when it is disrupted, so are the relations built upon it – not only relations among the persons immediately concerned, but also relations among the other people whose lives are affected  by the disruption of communal relations  entails (this sentence is directed against A 56ff). Usually the bad consequences will be on the surface, but when they are not we also have to consider the welfare of a society that relies on kinship relations to provide its structure I take St. Thomas to be hinting at the need for such a grammar when he speaks of “too ardent” love, and not the silly argument that married siblings might have sex too often.  As I read him, the sort of love appropriate between brother and sister, or between father and daughter, if combined with that between lovers or spouses, should cause us to balk  

The need for a grammar of personal relations is also recognized among groups one might expect to repudiate it:  Ned Rorem remarked of the promiscuous “tribal gay scene” in Fifties Greenwich Village, “There wasn’t sex in the family.”[37]  And age differences continue to provide an important element in the grammar of our personal relations:  my students, to state their views with artificial precision, regard sex over forty as a perversion.  

 One purpose of the grammar of sexual relations is to provide for relationships for which sex is out of the question (to prevent sexual rivalries within the family for example).   Another is the use of sexual bonds to forge alliances among groups – if I am required to marry a woman of another clan, my relatives and hers then become relatives of a sort.  I know of two couples who became friends when their children were courting, and came to fear that the children would break up and damage their parents’ friendship. 

Liberal understandings of harm[38] and privacy are fatally ambiguous.   The concept of a victimless crime is used to defend practices, such as abortion, that harm an entity, though one whose moral status is disputed; and privacy is used to support behavior advertised in the Yellow Pages or proclaimed in the media.  But there are also subtler reasons why these concepts are problematic 

In view of the complex and powerful emotions associated with human sexuality, a society needs relationships from which sex is excluded as much as it needs relationships within which sex is not only permitted but encouraged. Of course, one might regret the intensity of sexual feelings, and wish that human beings could couple, or otherwise discharge excess sexual energy, as easily as hungry people satisfy their desires by a snack. But we are not that sort of being and it is pointless to wish that, and dangerous to act as if, we were.

We have, I am suggesting, a collective interest in the integrity of our kinship system, comparable to our collective interest in the integrity of our currency.  What harms it harms us regardless of anything else.  To understand the nature of this interest, it is best to consider the generation represented by our students, which lacks the experience of an unquestioned normative family, and for this reason finds itself increasingly bewildered in its decisions concerning personal relationships.  To be sure, the 1950’s family was not a haven in a heartless world:  attitudes toward the sexual and other abuse of children within communities have hardened since then.[39]  Nonetheless, there is something of value in a publicly acknowledged norm, even if it continues to be violated in secret. (This proposition is uncontroversial for such things as racial discrimination.)

The threat of social chaos that underlies the argument in this area is never fully realized in practice.  The sexual life of animals is no more chaotic than any other aspect of their lives.  However much ancient Rome may have earned its reputation of “lustful cruelty and cruel lust” (as St. Augustine put it), contrary principles of loyalty, religion, and marriage were never forgotten.    Corresponding to the socially conservative vision of chaos is a radical vision of human relations unmediated, and therefore undistorted, by social roles, including those of marriage and kinship.  Incest, and even sex with children would be legitimate for this vision, but its advocates draw the line at violence and deceit.  But the contention, that one can remove constraints on the sexual instinct without thereby also removing constraints on violence, is both implausible and not supported by experience. In any event, this vision is never realized in practice:  even communes have a structure.     Yet societies do fall apart, and the consequences are not pleasant.  When order is restored, it is likely to be far more brutal than the repression that the rebels rejected.   Weimar Germany led to Nazi Germany.

Many of the arguments advanced for legitimizing homosexual practices extend also to incest and for that matter to pedophilia. Conversely, one reason given by the informants of anthropologists for incest prohibitions — that it is wrong to “put the same on the same” (maxim of the Samo of Burkina Faso (formerly Upper Volta), cited in H chap. 6, esp. p. 203). – applies quite directly to homosexual practices. [40]   And the same is even more so of Héritier’s fuller formulation:  “What is absolutely unthinkable … is the sexual relationship between perfect identicals.  Unthinkable evil, unthinkable ideal” (H 315).

Denying people their preferred form of sexual expression, or requiring them to keep their practices private, is widely resented in contemporary society. And people involved in nonstandard sexual relationships may love one another; parents and children, and other close kin, are expected to do so.    Yet those who have pressed for the normalization of homosexuality and resisted the normalization of incest are not, strictly speaking, inconsistent. They can be proposing a new grammar for sexual relations, one less rooted in biological facts than is the heterosexual norm.  For incest with one’s stepmother is biologically indistinguishable from sex with another woman of the same age.  Moreover, there are reasons for leniency toward homosexuals that do not apply, at least with the same force, to people in love with, or in lust for, a close family member: the incestuous lover can be told that there are lots of other fish in the sea.   Moreover, kinship relations are now more central to many people’s way of life, or at least to their professions, than are the differences between male and female.  Contemporary sensibility even regards mothers and fathers are interchangeable (a couple will announce “we are pregnant” in defiance of the biological facts).    Yet it is impossible to escape the impression that there is something feigned, or even fraudulent, about such professions.

The complex analogies between gender and kinship join with the lessons of experience supporting the conclusion that slippery-slope considerations cannot be laughed away.  When the Supreme Court upheld a right to contraception, it did not seem that the argument would be later extended to abortion let alone to homosexual practices. Though there is no significant incest rights movement at present, this feature of our politics cannot be taken as permanent.  For the rhetorical resources of such a movement are now in place.

V.

In determining the limits of acceptable behavior, and more particularly in applying a concept like incest, both individuals and communities are faced with a line-drawing problem.  Sometimes the line is drawn by the gut feelings of the individuals concerned, sometimes by the mutually reinforcing feelings of the members of the larger society, sometimes by legislation (whether the criminal law or the law of marriage), and sometimes, as in the book of Leviticus, by divine revelation.  Except for revelation, and even there when it is applied to a complicated case, what is called for is the indispensable but ambiguous virtue of prudence. 

The arguments here deployed to support a modest form of social conservatism might end up supporting a more extreme version.  For the differences between the sexes and the races, like relationships of kinship, form part of our social grammar.  And we would or should not tolerate behavior that undermines the currency or the banking system on the ground that it goes on discretely.

Moreover, America before the Civil Rights Movement was not only replete with racial prejudices; it was expressly structured on racial lines. Thus the Movement assaulted not only some particular law or policy, but a complex social system, of which a prohibition on miscegenation (more severe where the white party was a woman) was one crucial part.   So far as persons of color are concerned, while a member of the Nation of Islam, Malcolm X rejected interracial sex in crude terms.[xli]   James Baldwin hated racism, but he also believed that race was so deeply entrenched in our social structure and conceptual scheme that it could not be removed without a metaphysical revolution.  In his own language, he believed that God was white.[xlii]  Interracial sex – and even more so interracial homosex – was for him an act of metaphysical rebellion. [xliii]  In short, the question once put to racial liberals, would you like your sister to marry a Negro?  needed to be faced.  And this question poses the further question, if racial distinctions are not founded in human nature, what social distinctions are.

The argument from social grammar threatens to support an endless series of further exclusions –class barriers and the exclusion of Jews for example.  It also threatens the revival of other ideas generally thought well discarded, such as the double standard of sexual morality and the corresponding doctrine of two kinds of women. Even intellectual questioning of established ways might be thought dangerous.  St. Thomas used the analogy with the currency I have invoked in connection with incest to defend civil penalties for heresy (Summa Theologiae IIa IIae, Q. 11 a. 3).  Social conservatives must face the possibility of a different slippery slope, not a slope into chaos, but into an untenable form of conformism and immobilism.  

Dealing with this possibility requires going beyond mere conservatism to a search for standards founded in human nature.    Whether we should cease to organize our lives around kinship and gender, as we have endeavored to cease to organize it around race, cannot be settled by a short argument.  The core issue is, whether we object to any grammar of personal relations, or only those we have independent reason to believe unjust.  That one social grammar is unjust does not imply that all are, and conversely that we have a need for a social grammar does not imply that just any possible grammar is just.  Thus the appeal to the grammar of personal relations leaves open the question, what forms of society and personal relationship are good for human beings.  Applied to sexual morality, it raises the issue, how important sexuality is in human life and in what way.  At one end we have the recreational view of sex; at the other end the view of Schopenhauer that sex is an unnecessary evil and that the human species should therefore die out.  In between is the quasi-sacramental view of sex implicit in John Paul II’s theology of the body, which affirms the goodness of sex while objecting to practices that entail its banalization.

The culture wars engage the dispute between those who treasure inherited structures for the procreation and nurturing of human life, which at least arose in a religious context; and those who would replace them with state power or free-form human relations.  On the free-form side, even so pious a writer as Eric Gill draws disturbing implications from the beauty of the human body and the goodness of sexuality. He writes of his discovery of his sexuality

I lived henceforth in a strange world of contradiction:  something which was called  filthy which was obviously clean; something was called ridiculous which was obviously solemn and momentous; something was called ugly which was obviously lovely.[xliv]   

In practice this turned out to imply the legitimation of all forms of sexual behavior, including anal intercourse with an underage daughter.[xlv]  

The deepest question is, does human flourishing require some sort of structure independent of our choices, or is it sufficient for us to be free to whatever we choose to be (or feel like being at any given moment), so long as we are not unjust to other people by standards that do not engage controversial ideas about the human good?   In such a context, what a philosopher wants to hold is of crucial importance:  Thomas Nagel, for example, wants atheism to be true.[xlvi]   

Both nature and convention enter into our understanding of incest, as of all other moral issues, and it is impossible to draw a precise line between their contributions.  In practice, people are best advised to follow what the conventions of their group, in the absence of powerful reasons to the contrary.  For they condition both the consequences and the significance our actions.[xlvii]

Or       

THE CONCEPT OF EUROPE[1]

This paper began life as a response to a conference paper, not even semi-published, by Alasdair MacIntyre, entitled, “How to be a European:  Questions for Tariq Ramadan.”[2] I have attempted to answer MacIntyre’s question, what is Europe (or a European)? in my own way, though I hope my method is broadly at least in accord with his.  The paper is not an interpretation of MacIntyre, though it is an attempt to understand and further his theoretical and practical project.

            Europe has long been closely associated with the Christian tradition in the public mind.[3]   Yet the Christian religion arose in the Middle East, and its center now shifting from Europe to the Global South.[4]   And the contemporary understanding of what it is to be a European is more likely to be secularist, consumerist, and plutocratic than Christian.  This essay is an attempt at combined conceptual analysis and cultural criticism provoked by these observations.  I do not here denigrate Europe and praise America, nor do I criticize the European social democratic project, which I believe that the Eurocrats are undermining.

I.  Introduction

            Europe is a contested concept embodied in a tract of territory; one European commentator on this paper has called it poster concept without determinate meaning outside political sloganeering).   Geographically, Europe (in contrast to Western, which is not really a geographical expression) designates what might best be described as a quasi-continent though one whose boundaries are unclear.  Still, New Zealand, however important European ideas might be to its formation, is not a European country. 

The word Europe also designates an idea, though an extraordinarily elusive one.[5]    Like other contested concepts, for example law, marriage, liberalism, and person, and, as I have recently learned rural, its sense, reference, and evaluative force depend on who uses it and why.   The continent of Europe shares a common history of bloody war, fueled in part by religious and ideological controversy.   One phenomenological investigation of the concept of Europe concludes that “as Tashidi Ogawa has suggestively remarked, what Europe … demands of itself is nothing less than the de-Europeanization of European life and thought.”[6]   This sort of cosmopolitanism, in its own way very European, may be admirable in philosophy, but provides no foundation for co-operation among Europeans or for the persistence of a European society from generation to generation.  Europe’s leaders have rejected Christian cosmopolitanism as a basis for unity, and the rise of the Postmodernist movement means that the Enlightenment cannot be taken for granted, either. [7]       

II. Europe vs. America

For Americans, Europe stands for two sharply contrasting things.  On the one hand, it represents a richer, thicker set of beliefs and practices from which Americans who find our way of life thin can draw spiritual sustenance.  On the other hand it represents what one polemicist calls “a shorter workweek, early retirement, Internet pornography, state-funded abortion, afternoon adultery, the whole dolce vita lifestyle constantly held up as a reproach to us money-grubbing, overreligious Americans.”[8] 

One motive at work in the literature of European decadence was to discredit German and French opposition to the American invasion of Iraq in 2003.   The argument that contemporary Europe is decadent it has been made from perspectives ranging from religious conservatism to gay advocacy (for a survey, see J 10-17), however, and thus cannot be dismissed as an artifact of international politics (like the notorious ‘freedom fries’).  Probably the most neutral statement of the difference is that Americans and Europeans differ in their estimate of the value of the use of military force – in part for the uncomplicated reason that Americans have more force to deploy.[9]  This sometimes means the illusion that it is possible to ‘rid the world of evil’ by establishing unchallenged American dominance.[10]  Skepticism or hostility toward international law and the United Nations is a natural corollary of such attitudes.

Nonetheless, all cultural clichés contain a mixture of truth and error, and the contrast between decadent Europe and virile America is no exception.  Decadence is primarily a condition of a society or culture, and only secondly a condition of a writer or other individual.     A group is decadent if it is unable or unwilling to reproduce itself biologically or culturally.  One dimension of decadence is failure to reproduce; another is the ineffectiveness of a group’s official beliefs and consequently its inability or unwillingness to transmit the way of life that embodies them to the next generation.   A celibate order is not necessarily decadent, but such groups avoid decadence by placing themselves within a breeding community, which admires their view of life and from which they may hope to recruit new members.   One dimension of decadence is a condition of moral sensibility, in which reason and emotion fail to co-operate effectively in the guidance of and evaluation of conduct.   

In a thoroughly decadent society, even the memory of the orthodoxies which gave structure to life has departed.    Moral judgment degenerates into a legalism that leaves no room for prudent adaptation to circumstances, a situational emotivism that allows free rein to whatever feeling that may be dominant at a given moment; and  the use of bureaucratic idioms, such as significant other or lifestyle, designed to circumvent questions of value.

America is as decadent as Europe.  The attacks of September 11, 2001 sparked a nauseating episode of dishonest self-congratulation in America, during which only extremists like Jerry Falwell, Ward Churchill, or Stanley Hauerwas (who “disdain[s] all natural loyalties”)[11] could suggest that America’s misfortunes were even partly America’s own fault.    In a time of national trauma and mourning, when an earlier generation of leaders, both American and European would have proclaimed a day of fast and humiliation,[12]  the younger Bush, joined by former President Clinton, called for “continued participation and confidence in the American economy”– in other words shopping. [13]  Internet pornography is as much an American as a European phenomenon.  Our abortion rate is roughly twice that of the Netherlands (J 68).  We are up to our gills in credit card and other consumer debt.[14]  There are disturbing reports that our troops in Iraq and Afghanistan assert American power abroad only with the help of heavy medications.[15]  If the measure of decadence is the collapse of communal structures and the transformation of society into a dust of individuals, some writers argue Europe is far less decadent that America.[16]    As for intellectual decadence, it is hard to top the American Richard Rorty.[17]

Contemporary American politics confirms MacIntyre’s claims concerning de facto emotivism of our moral and political discourse.[18] Bush-bashing was prolonged until the day of his successor’s inauguration.[19]  No sooner was President Obama inaugurated than the campaign for his impeachment began: the gist of the charges is Obama’s “unabated malevolence towards this country” — by which is meant Republican or “red state” America.[20]  On a broader front, America is currently experiencing what the New York Times has called a wave of anti-incumbency sentiment.[21]  The polarization of American politics, which invites people to regard their opponents as not just as mistaken but also as wicked, now extends beyond morally fraught issues such as abortion and torture.[22]  

A further contrast between Europe and America concerns our attitudes toward authority. As Jenkins (J 86) reminds us, European elites are more homogeneous, and therefore more capable of controlling grassroots dissent, than American.   In America, as Jane Pauley has put it, “the Left and the Right have changed costumes.”[23]   A group called the Tea Party Express evokes America’s revolutionary past and our invocation of resentment of taxes a way of raising questions about legitimacy (not to mention considerable moral zeal) to discredit government (its slogan is Just Vote Them Out!)[24]  It has a military wing called “Oath Keepers,” which announces its readiness to disobey orders they interpret as commands to take part in a coup d’etat.[25]   Its adherents are scornfully called ‘teabaggers’ — an expression that has a nasty sexual connotation.  

The behavior of politicians of both parties has done much to feed the distrust of government such groups exploit. Senator (now Vice-President) Joseph Biden used charges of sexual impropriety against Justice Clarence Thomas, little reckoning that a President of his own party would be guilty of far worse improprieties than those charged against Thomas.    Moreover, private malefactors get much of their power from the state.  Poletown in Detroit was destroyed with the help of the sovereign power of eminent domain, for the benefit of General Motors.[26]    

America is now divided into two different countries, neither of which is comfortable sharing national boundaries with the other.  There is much in MacIntyre’s thought to ground sympathy for the Tea Party movement, since he finds the claims of expertise that underlie the contemporary Democratic Party program of New Deal Restorationism highly questionable.[27]  For example, the recent health care act was unintelligible to ‘plain persons,’ who relied on the testimony of experts to tell them whether it was benign or sinister.  

A narrative of decline and fall requires a base-line of relative health, from which decline can be measured.  Walter Laqueur’s base-line is the Europe of thirty years ago, i.e., the late Seventies, but even he recalls a childhood in part spent under Nazi rule.[28]   But if Europe since the disintegration of the Holy Roman Empire was ever healthy,  its time of health was before the First World War, when it was overwhelmingly Christian, and even its secular representatives such as Marx sought to pursue the ends of, usually Protestant, Christianity by other means. 

Contemporary Europeans are absentee Christians, to use MacIntyre’s suggestive phrase.  The Irish joke, “Are you a Protestant or a Catholic atheist?” retains its point.  Still, this absenteeism reached the point where cathedrals and art galleries have to provide elementary accounts of Christian doctrine of the sort needed by a visiting Buddhist (J 37). The prevailing relativism of European culture renders it mute before the assertiveness of a tradition that insists that the Qu’ran is without qualification the word of God, whether in confrontation or dialogue.     To take a point from Catholic writer Russell Hittinger, the Netherlands, which is in the forefront of the euthanasia movement, can hardly counter Muslim vigilantism by insisting on the sanctity of innocent human life or the state’s monopoly on the use of lethal force.[29]   And Marxist writer Terry Eagleton has observed, “If the British or American way of life were to take on board the critique of materialism, hedonism, and individualism made by devout Muslims, Western civilization would most certainly be altered, for the good.”[30]  In short, the resurgence of militant Islam represents the repressed bad conscience of the West, and in particular Europe.

Kelvin Knight has described MacIntyre’s current political stance as a politics of resistance; the phrase Aristotelian revolutionary is due to Knight, but has been approved by MacIntyre  [31]  MacIntyre’s program and strategy are far from clear, but their thrust is very much in the American mold.  Many a revolution has been launched in defense of traditional ways of life; a contemporary possibility is the protection of human, cultural, and natural environments against the deification of the market, [32]  the proponents of growth at any cost, the claim of technology to replace religion as he source of our definition of reality, the revolt of the elites against the claims of common humanity, and the marketing of “alternative life styles.” He is therefore in the same camp as Wendell Berry,[33] Christopher Lasch,[34] and Neil Postman ^[35]   – culture critics who, though in some sense conservative, do not spare the shibboleths of contemporary capitalism.    

We Americans could use less taste for political patricide, and Europeans a greater degree of insubordination.   I notice, however, that in a recent survey only 0,2% of Lithuanians[36] viewed the government in power with unqualified approval, and that 34,700 emigrants left Lithuania to live in other countries in 2009, 50% more than in 2008.[37]  Though hyper-inflation has been overcome, the official unemployment rate in Lithuania is now 15%.[38]  The birth rate is below the replacement level.  [39]Such facts do not seem to have the political implications that they would have in America.

In any event, one implication of MacIntyre’s politics is that the American attitudes toward authority that underlie movements like the Tea Party should be regarded as an occasion for education rather than as objects of contempt.  Any American revolution will have to be an American revolution (and the same point holds for England, France, or Germany):  the project of using immigration to turn America in to Latin America is absurd on a number of grounds. Perhaps they can learn to focus less on the moral failings of politicians, and more on the suspect role of the corporate and technocratic elite.  But Aristotelian revolutionaries, as much as any other need to face the problem of the state –how can we muster its capacity for good without, at the same time letting loose its at least equally immense capacities for evil?

III. The European Union.

            It is now time to examine the project of European integration, which some expect will issue in a Europe that is one nation, in the sense that the United States or even or Lithuania is one nation.   Reponses to this prospect have ranged from paranoia[40]  to gush.   An example of gush is Jeremy Rifkin:  “We Americans used to say that the American dream was worth dying for.  The new European dream is worth living for.” [41]  Democratic advocates of “another Europe” represent yet another point of view,[42]  as do those critics who see not only the European Union (EU), but the whole of European civilization, as committing “slow-motion suicide.” [43]   

Among the theories crafted by political scientists, to understand and guide the course of European integration, the most important is neo-functionalism.  The key neo-functionalist concept is spillover (of integration in one area to integration in another).  Co-operation on one front leads to co-operation on others.  As the political scientist from whom I have taken this idea reminds us, however, “’spillover’ assumes the continued commitment of the member states to the undertaking” – at least until integration has proceeded so far that the nation-states of Europe cease to be independent actors. [44]    There are two grounds for skepticism about this project, one derived from Hobbes, the other from Rousseau. 

A. Hobbes

EU law claims to be supreme.  But the EU relies on national police and armed forces for its enforcement, [45]  and national courts have accepted its claims only conditionally.[46]    What, an American observer inevitably asks, if a situation emerges in which the EU attempts to impose upon its constituent members policies offensive to the majority or to the elite within some country?  

A second issue concerns voting in EU Council.  Decisions may be taken either by unanimous vote (abstentions do not block a decision), or by qualified, i.e. weighted, majority vote (QMV) – in other words by votes proportioned to power.  “Nonetheless, there is an underlying ‘culture of consensus’ in the council, which ensures that the council hardly ever acts by QMV even when it is allowed to by the provisions of the Treaty.”[47].    But the concept of consensus represents a prudential decision that some party is weak enough to ignore, without the frank recognition of this decision implied by a majority vote.  Moreover, the possibility that a state may be outvoted cannot be glossed over; as one advocate of another Europe puts it, “QMV means that laws which are opposed by a sovereign state’s government and may be abhorrent to its people can be imposed on them.  There may be defenses of this, but practicality will not do” (McG 33). 

A broader issue is the difficulty of understanding how EU institutions are supposed to work, even at the level of a high-school civics course. The large literature attempting to explain these institutions still leaves them somewhat vague in my mind and I suspect that of many others.[48]   One implication of the murkiness of EU institutions is that grassroots constituencies are at a severe disadvantage against elite lobbies, since they cannot figure out where to apply pressure.  Another is that, if a confrontation should occur between the EU and one of its constituent states, the ‘European’ party will have a hard time rallying its forces.  It is difficult to imagine a European Abraham Lincoln.

B.  Rousseau

Nation-states are bound together, not only by the acceptance of a common authority, but also by spontaneous solidarity. Hence a second route to Euroscepticism takes its marching orders from Rousseau rather than Hobbes. The general will is not one of the clearest concepts in political thought — understandings of it range from strong democracy to the fascism – but it does seem that not everything in politics can be a matter of bargaining or voting.

Patrick Buchanan has put the question in disturbing terms:          “No transnational institution can elicit the love and loyalty of a country…. Men have died in the millions for Poland, France, England and Germany.  Who would walk though fire for the European Union?[49]”  We need only to add that the communities now capable of eliciting spontaneous loyalty may now be not traditional nation-states, entities smaller than, larger than, or overlapping, such states.  Catalonia may turn out to be more important than Spain, Cornwall than the United Kingdom.

It is still possible that the idea of Europe could move men and women to make sacrifices on its behalf, and in this way support a Europe-wide general will.   At present, the most important issue is that of solidarity:  in times of economic crisis, are relatively fortunate states prepared to make sacrifices for their weaker brethren?  For some countries, having been dragged into “Neoliberal” capitalism, have found it a weaker reed than its apologists promised.    As the New York Times has recently explained, 

The traditional concept of “solidarity” is being undermined by protectionist pressures in some member countries and the rigors of maintaining a common currency, the euro, for a region that has diverse economic needs. Particularly acute economic problems in some newer members that once were part of the Soviet bloc have only made matters worse. [50]

Economic pressure can only aggravate cultural and religious conflicts, and the broader social tensions with which it is inextricably entwined (see J 168ff for how this happens in Europe.).    

            The Rousseau-inspired critique of the EU proceeds on two further tracks:  that of democracy and that of sovereignty.

1.  Democracy

 The collapse of Communism was a great victory for democracy; the movement toward a united Europe is its greatest recent defeat.  As Stephen McGiffen has observed, and as recent economic developments have made clear, 

Probably the biggest single act of subversion of democracy committed in the name of the European Union … has been the establishment of the single currency, the euro… The Maastricht Treaty’s convergence criteria for admission to the single currency and the rules for participation … oblig[e] member states … to follow … a particular idea of fiscal prudence.  These rules are impervious to electoral change and imposed by an unelected board of central bankers, one of the narrowest ruling elites in recent history. (McG 185) 

More broadly speaking, “Until the dying days of the Soviet system … democracy was defined in large part as a political system which allowed people to choose between competing economic systems”(McG 183).   And the EU denies its members that freedom.

As the New York Times recently explained,     

The 16 nations that use the euro … must submit to the monetary leadership of the European Central Bank. That keeps some members hardest hit by the economic downturn, like Ireland, Spain, Italy and Greece, from unilaterally taking radical steps to stimulate their economies.[51].

The heart of the matter is that the EU is a plutocratic institution, one in which what the interests of bankers is predominant, in derogation of both democracy and the power of other elites. Nor is the rule of bankers benign, except by comparison to Soviet and Nazi rule or ethnic cleansing on the Balkan model.   In Lithuania, for example, Neoliberal economic policies implied inflation of more that 1,000 %, and the loss of tens of thousands of industrial jobs,[52] leaving the losers without either income or savings.  

Yet even a plutocracy requires a shared understanding of what it is about, and the EU is by common consent deficient in what is nowadays called “the vision thing.”    But democratic advocates of another Europe have also failed to come to grip with cultural issues any better than their plutocratic adversaries.  McGiffen writes:

In order to defend what is left of democracy, to create a genuine internationalism, and identify real alternatives, we must first leave our flags at home, forget about whose picture is on the money, and make a bonfire of all those national myths which we were force-fed as children (McG 187).

But the idea of a united Europe requires active belief, not merely acquiescence out of powerlessness or a craving for material luxuries. The lack of such belief among voters is reflected in low voter turn-outs for the European Parliament and the growth of fringe parties.[53]   Democratic societies, even more than oligarchic ones, need to beget and educate a new generation and to socialize them to accept their political norms.     But immigrants cannot be asked to assimilate into a society that proclaims only its ironic detachment from its heritage, while many people of native European stock find the official ideals of secular Europe unacceptable. 

The stock EU response to cultural issues emphasizes the right to religious freedom.

While the constitutional system has to be neutral in matters of religion or Weltanschauung, it must be explicit as regards the values of human dignity and the respect for human rights. Those principles have the character of so-called “meta-values” (or meta-norms), values which are the condition for the enjoyment of the basic individual rights and freedoms by every citizen according to his/her specific convictions and value system, including religious confession.[54] 

But not all worldviews support these ‘meta-values,’[55] and adherents of those that do will each interpret and apply them in their own way, as they address issues in sexual morality, bioethics, economic policy, and the boundaries of religious freedom.

In terms of the philosophy of Habermas, philosophical morality  rests on conventional morality, and there are practical issues, perhaps many such that cannot be resolved in terms of philosophical morality alone.  As Habermas puts it, “The possibility cannot be excluded that abortion is a problem that cannot be handled from a moral point of view at all.”[56]  And, as Thomas McCarthy suggests, “what Habermas says about abortion [might] hold for a great number of issues that democratic legislatures typically have to deal with in multicultural societies.”[57]  “Morality” here means philosophical morality of the broadly Kantian sort advocated by Habermas and the early Rawls (not every possible philosophical morality), in contrast the mores of particular societies, which are unsurprisingly different in the Baltic countries than in, say, the Netherlands.  The local cultures the Eurocrats have agreed to respect are not limited to such things as traditional songs, dances, and recipes.[58]

Finally, the bland ‘Euro-discourse’ to which EU representatives are inclined feeds paranoia.  For, in a world where customary patterns of expectation have broken down, we fear one another deeply.  People we know may a source of trouble, be we know what to expect of them.  The culturally alien are unpredictable and therefore scary, and vague humanistic pieties make fears more intense,

2 Sovereignty

The idea of sovereignty is a transposed theological concept;[59] it has sometimes been described as “organized hypocrisy.”[60]    Both the idea and its institutional realization have a complex history, in which both religious and secular ideas have had a crucial role, though they never float freely of human beings and their interests.[61]   

The ‘Westphalian’ idea of sovereignty is Protestant in logic and inspiration.  As Daniel Philpott observes, “all along, the [Catholic] Church has condemned the absolutely sovereign state as an idolatrous claimant to godlike status, an affront to the moral order and to natural law, whose authority lies ultimately far beyond the borders of the state.”[62]   Jacques Maritain for example rejects the idea of sovereignty, in part on the ground that its underlying theological analogy is defective.[63] 

Yet it would be wrong to dismiss sovereignty as irrelevant. . There are social entities that act as units and in which local resistance or external intervention is commonly perceived as illegitimate.   So long as nationalism remains an influence in our world, it is not possible to dismiss the idea of sovereignty, and the corresponding resentment of ‘outside’ intervention or ‘inside’ resistance, as an element in our political life.   That the accountability of supposedly sovereign entities is relatively informal does not mean that it is unreal, but it does make a significant political difference. 

  IV.

The project of European integration is fundamentally flawed.   The Eurocrats political arrangements model the kind of marriage where the husband leaves his wife for no better reason than when the wife becomes ill, or simply grows older, the husband finds a younger woman more attractive. 

The Eurocrats are banking, to a dangerous degree, both on continued prosperity and on their ability to control cultural conflict.  The revival of nationalism in a nasty form (which need not correspond to existing state boundaries), and the resulting collapse of European integration in blood, is one possible outcome.   But, in view of the poor predictive record of the social sciences, it would be absurd for a philosopher to move into the breach.   Whatever their faults may be, Europeans know in their guts that war not only kills, but also has devastating social and spiritual effects.[64]   

A standard answer to the question of the sources of lost confidence, though one that merely pushes the question back a step, is the loss or weakening of religious faith.  As Jenkins has observed, “Death and resurrection are not just fundamental doctrines of Christianity; they represent a historical model of the religion’s structure and development” (J 289).    The revival and decline of old religions, as well the formation of new religions, provide a clear case of the X-factors in politics that disrupt our attempts to predict the human future.    Yet the invention of new religions could not help the EU project.  Even the renewal of old religions seems more likely to foster fragmentation than union.[65]   Founding a Christian revival on hostility to Islam[66] would be to support forms of secularism that propose to destroy Christianity as well.[67]  

V.  On the Fragility of Institutions

Nonetheless, the fragility of a set of institutions may be a source of its stability. For political actors  may restrain themselves out of fear of collapse, at least until the issues moving them do otherwise become too pressing.

The theorists of the social construction of reality[68]  – or, less polemically, the construction of social reality[69]– remind us, in the words of Peter L. Berger and Thomas Luckmann, that “all societies are constructions in the face of chaos.”  In the present world, for example, human rights are established by loudly asserting them, and getting others to accept them by whatever means.[70]     Though human nature sets limits on such constructions, [71] social forms are undetermined by observable human nature, while normative and metaphysical accounts of human nature vary widely.  The upshot is the recognition of the dependence of all our institutions on what unbelievers call fortune and believers call Providence. [72] 

Philip E. Devine

Providence College

NOTES

[2] Notre Dame Center for Ethics and Culture, December 1, 2007. 

[3] See Philip Jenkins’ balanced discussion, God’s Continent (Oxford:  Oxford University Press, 2007), cited as J.  For a contemporary statement of this idea, see Benedict XVI, Papal Address at University of Regensburg, “Three Stages in the Program of De-Hellenization” (September 12, 2006).  Posted at http://www.zenit.org/article-16955?l=english. Accessed June 2, 2009.

[4] See Jenkins, The Next Christendom (Oxford:  Oxford University Press, 2002)…

[5] See Roldophe Gasché, Europe or the Infinite Task (Stanford, CA:  Stanford University Press, 2009).

[6] Gasché, Europe, p. 33; the reference is to Ogawa, “Eurozentrismus, Eurozentrik und Ent-Europäisierung,” in Grund and Grenze des Bewusstseins (Würzburg: Kőnighausen, & Neumann, 2001), p. 129.

[7] For a provocative account of the issues, see Bruno Latour, We Have Never Been Modern, trans. Catherine Porter (Cambridge, MA:  Harvard University Press, 1993).

[8] Bruce Thornton, Decline and Fall:  Europe’s Slow Motion Suicide (New York:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Encounter, 2007), p.135.

[9] See Robert Kegan, Of Paradise and Power (New York:  Vintage, 2004).

[10]  For a selection of expressions of this theme, see George W. Bush, We Will Prevail, National Review edition (New York:  Continuum, 2003).  Daniel Frum and Richard Perle Riding the World of Evil (New York:  Random House, 2003) spell out what such policies mean in practice.

[11] For Hauerwas’ response to the attacks of September 11, 2001, see his Hannah’s Child (Grand Rapids, MI:  Eerdmans, 2010), pp. 264-272 (quotation, p. 268).

[12] Queen Victoria proclaimed a day of humiliation in response of the outbreak of the Indian “Mutiny” of 1857.   Andrew Ward, Our Bodies are Scattered (New York:   Holt, 1996), p.524.

[13] Benjamin Wallace-Wells, “Mourning Has Broken,” Washington Monthly, October 2003.   Posted at http://www/washingtonmonthly.com/2003/0310.wallace-wells2.html. Accessed March 25, 2008 (quoting an address of September 20, 2001).   On Clinton’s participation in this campaign, see Paul Krugman, Robin Wells, and Anthony Myatt, Macroeconomics (New York:  Worth Publications, 2006), p. 269.  I am indebted to James Devine of Loyola Marymount University for these references

[14] The total U.S. revolving debt (98 percent of which is made up of credit card debt) was $852.6 billion, as of March 2010.  As of the same date, the total U.S. consumer debt was $2.45 trillion. Ben Woolsey and Matt Schulz, “Credit Card Statistics, Industry facts, Debt statistics,” CreditCards.com. Accessed May 27, 2010.

[15] Kelly Vlahos, “G.I. Drugged,” American Conservative, March 21, 2010.

[16] See Mary Ann Glendon, Abortion and Divorce in Western Law (Cambridge, MA:  Harvard University Press, 1987).

[17]  The remarks on torture in Rorty, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982), p. xlii, have grown darker since he wrote them.

[18] See MacIntyre, After Virtue, revised edition (Notre Dame:  University of Notre Dame Press, 1984), chap. 3, excerpted in Kelvin Knight, ed., The MacIntyre Reader (Notre Dame:  University of Notre Dame Press, 1998), pp.73-75.

[19]  See “Sock and Awe” (http://www.sockandawe.com/ accessed December 18, 2008).  I am indebted to Robert J. Rafalko for this reference.

[20]See impeachobamacampaign.com, accessed May 27, 2010.  For the campaign to impeach Bush, see Jan Frel, “Could Bush Be Prosecuted for War Crimes?” AlterNet, July 10, 2006.

[21] May 19, 2010. 

[22] For detailed discussion of contemporary American political polarization, see Alan I. Abramowitz, The Disappearing Center (New Haven:  Yale University Press, 2010).

[23] At the 1995 Providence College Commencement.

[24] See http://teapartyexpress.org/  Accessed December 30, 2009.  Mark Murray and Domenico Montanaro, “Tea Party more popular than Dems, GOP,” http://firstread.msnbc.msn.com/archive/2009/12/16/2154426.aspx. Posted December 16, 2009, accessed December 30, 2009

[25] http://oathkeepers.org.  Accessed March 6, 2010.  See Justine Shamrock, “Oath Keepers and the Age of Treason,” Mother Jones, March/April 2010. 

[26] Glendon, Rights Talk (New York:  Free Press), pp. 29-30.  For the approval of such measures by the Supreme Court, see Kelo v. New London (2005).

[27] See MacInytre, “Social Science Methodology as the Ideology of Bureaucratic

Authority,” reprinted from Maria J. Falco, Through the Looking Glass (University Press of America, 1979), in Knight, Reader, pp. 105-108. 

[28] Walter Laqueur, The Last Days of Europe (New York:  Thomas Dunne/ St. Martin’s 2007), pp. 1, vii.

[29] See Hittinger, The First Grace (Wilmington, DE:  ISI, 2003), chaps. 6 and 8.  I am indebted to my colleague Andrew Peach, now a student at the University of Virginia Law School, for calling my attention to these chapters.

[30] Eagleton, “Culture and Barbarism,” Commonweal 136, no. 6 (March 27, 2009):  11-12.  Eagleton elaborates his argument in Reason, Faith, and Revolution (New Haven:  Yale University Press, 2009).

[31] Knight, Reader, pp. 23-24.

[32] On the theology of the market see Harvey Cox, “The Market as God,” Atlantic Monthly (March 1999), reprinted in John Wilson, ed., The Best Christian Writing, 2000 (New York: HarperCollins, 2000), pp. 79-91. 

[33] Berry counters the urban tendency to forget the rural poor in his “The Prejudice against Country People,” The Progressive 66, no. 4 (April 2002):  21-24.  Jeffrey Stout commends Berry to the attention of those influenced by MacIntyre in Democracy and Tradition (Princeton:  Princeton University Press, 2004).

[34] See Lasch, The Culture of Narcissism (New York: Norton, 1979).  Like MacIntyre, Lasch rejects the Communitarian label; see The Revolt of the Elites and the Betrayal of Democracy (New York: Norton, 1995), chap. 5.

[35] See Postman, Amusing Ourselves to Death (New York:  Penguin, 1986) and Technopoly (New York:  Vintage, 1993). 

[36] Since space limitations forbid me to consider every European country, I examine only Lithuania in detail.

[37]  Lit News, July 23–August 11, 2010, p. 2.

[38] CiA information as of February 19, 2010.  Posted at http://www.indexmundi/Lithuania/unemployment-rate.html.  Accessed August 7, 2010. 

[39] According to official sources, the number of children born alive to the average woman is now 1.55 %, well below replacement levels.

[40] Christopher Story, The European Union Collective (London:  Edward Harle, Ltd.., 2002) sees the EU as a vehicle for both German and Russian imperialism.

[41] Rifkin, The European Dream (New York: Tarcher/ Penguin, 2004), p.  385.

[42] Gugliemo Carchedi, For another Europe (London:  Verso, 2001); Stephen McGiffen, The European Union:  A Critical Guide, new edition (London:  Pluto Press, 2005) (cited as McG).

[43] See, for example, Thornton, Decline; and Laqueur, Last Days.

[44] See especially Leon N. Lindberg, “Political Integration:  Definitions and Hypotheses,” in Brent F. Nelsen and Alexander Stubb, eds., The European Union, 3^rd edition (Boulder, CO:  Lynne Reinner, 2003), chap. 17; quotation, p. 160.

[45] Simon Hix, The Political System of the European Union (New York:  St. Martin’s Press, 1999), pp. 108-110.

[46] Ibid., pp. 116-17.

[47] Ibid., p. 73.

[48] See, in addition to the works already cited, Neill Nugent, The Government and Politics of the European Union, 5^th edition (Durham NC:  Duke University Press,  2003).

[49]Buchanan, “The EU at 50:  Can it Survive Midlife Crisis?” Investor’s Business Daily, April 2, 2007.  Posted at www.ibdeditorials.com/IBDArticles.aspex?id=260406436848534&type=right, quoted in Ray Taras, Europe:  Old and New (Lanham:  Rowman and Littlefield, 2009), pp.76-77.

[50]Steven Erlanger, “Growing Economic Crisis Threatens the Idea of One Europe,” New York Times, March 1, 2009.

[51] Ibid.

[52] According to the official publication Lithuania:  An Outline (Vilnius:  Arketa, 2001), pp. 138-39.  On the NeoLiberal libido dominandi all over the world, see Naomi Klein, The Shock Doctrine (New York: Picador, 2007).

[53] Constant Brand, “Anger, Disappointment Sour EU parliament Vote” (Associated Press, 2009).  Posted at http://www.google.com/hostednews/ap/article/ALeqM5g84TG_GbGmg0KYpU0rWja872XM4wD98FB1700 Accessed May 30, 2009.

[54] Hans Kőchler, “The European Constitution and the Imperatives of Transnational Democracy,” Singapore Year Book of International Law (2005): 1-15.  Posted at http://hanskoechler.com/Koechler_EU_Constitution-SYBIL-2005.pdf.  Accessed December 5, 2008

[55] For a vigorous rejection of the idea of human dignity, see John Gray, Straw Dogs. (London:  Granta, 2003).  Alan Soble, Pornography, Sex, and Feminism (Amherst, NY:  Prometheus Books, 2002), defends pornography on the ground that it debunks claims to human dignity.

[56]Habermas, “Citizenship and National Identity,” Praxis International 12 (1992):  11.  

[57] McCarthy, “Legitimacy and Diversity,” in Andrew Arato, eds., Habermas on Law and Democracy (Berkeley, Calif.:  University of California Press, 1998), p. 126.

[58] Murray Forsyth observes:  “The steps taken by the Maastricht Treaty to reassure  some kind of brake on the  expanding powers of the Community’s institutions – namely the express declaration of the principle of subsidiarity, and the various provisions stating that the Union and the Community must respect the identity and cultural diversity of the member states – are indications of a growing anxiety, but  such principles of  and intent seem feeble indeed when compared with the differentiation of powers typical of an authentic federal constitution.”   “The Political Theory of Federalism,” in Nelsen and Stubb, eds., European Union, p. 212.

[59] See Carl Schmitt, Political Theology, trans. George Schwab (Chicago: University of Chicago Press, 2005).  Among classic theorists, Jean Bodin, De la république (1583) makes the theological connections most explicitly.

[60] See Stephen D. Krazner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).

[61] See Daniel Philpott, Revolutions in Sovereignty (Princeton:  Princeton University Press, 2001), especially chap. 7 on “The Power of Protestant Propositions.”

[62]  Ibid., p. 262.

[63]  Maritain, Man and the State (Chicago:  Phoenix Books, 1951), chap. 2.

[64] See Tony Judt, Postwar (New York:  Penguin, 2005), especially the Epilogue.   . 

[65]  For an attempt to make sense of the confusing historical data, see Charles Taylor, A Secular Age (Cambridge, Mass.:  Harvard University Press, 2007).

[66] As Michael Burleigh, Sacred Causes (New York:  HarperCollins, 2007) perhaps proposes. 

[67] See Richard Dawkins, The God Delusion (Boston:  Houghton Mifflin, 2006), especially chap. 9; and Sam Harris, Letter to a Christian Nation (New York:  Knopf, 2006).

[68] Peter Berger and Thomas Luckmann, The Social Construction of Reality (Garden City, NY:  Doubleday & Co., 1966), quotation, p. 96.  See also Nelson Goodman, Ways of Worldmaking (Indianapolis:  Hackett, 1978); and Ian Hacking, The Social Construction of What? (Cambridge, Mass.: Harvard University Press, 1999).

[69] See John R. Searle, The Construction of Social Reality (New York:  Free Press, 1995) and The Making of the Social World (Oxford:  Oxford University Press, 2010). A valuable secondary study of Searle is Joshua Rust, John Searle and the Construction of Social Reality (London:  Continuum, 2006).  The expression construction of social reality does not carry with it the suggestion that we are unmasking something questionable or conspiratorial.  No one doubts that money gets its value from convention.

[70] For an example of this sort of approach in practice, see Alison Jaggar’s contributions to Michael Tooley et al., Abortion:  Three Perspectives (New York:  Oxford University Press, 2009).

[71] As Berger and Luckmann concede, Social Construction, p. 167.

[72] This essay has benefited from discussions with Josef Velazquez of Stonehill College, James Hanink of Loyola Marymount University, and the participants in the meetings of the American Maritain Society, held in conjunction with the American Philosophical Association, Eastern Division (New York, December 2009),  and of the International
Society for Macintyrean Enquiry (Vilnius, July-August 2010).

FROM SAME-SEX MARRIAGE TO POLYGAMY

Philip E. Devine

Professor of Philosophy

Providence College

One Cunningham Square

Providence, RI 02918 USA

pdevine@providence.edu

BIG LOVE:

FROM SAME-SEX MARRIAGE TO POLYGAMY

(Abstract)

Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle, ought also to defend polygamous marriage.  For all the arguments that support same-sex marriage also support polygamous marriage, and polygamous marriage has advantages over the same-sex variety when it comes to providing a framework for the procreation and education of the next generation. My argument does not reach defenders of traditional (heterosexual, monogamous) marriage.   I also criticize liberal theory for neglecting friendship in favor of liberty and equality, in a way that bears on the marriage issue.    

BIG LOVE:

FROM SAME-SEX MARRIAGE TO POLYGAMY

It is possible to defend gay and lesbian relationships while accepting that marriage is by definition heterosexual.[1]   Some people believe that sexual activity outside marriage is always wrong, but no one I know of makes the morality of gay or lesbian sex turn on whether the parties are publicly recognized as married to one another   When, however, we examine institutions rather than individual relationships, it becomes clear that those who support same-sex marriage have no reason to refuse their support to polygamy as well.  (I assume that the polygamous wives in question are all above the age of consent, and are aware of, and consent to, one another’s existence.)

In Part I of this essay, I set the stage with some general remarks about the logic of marriage and the strategies for dealing with this and other essentially contested concepts.  Part II is devoted to a defense of my central thesis, Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle[2], ought also to defend polygamous marriage.  Part III pursues the argument into some points of liberal theory, which might lead its adherents to reject polygamy while accepting same-sex marriage.  Part IV deals with some broader issues, such as the rejection of ‘heteronormativity’ and the larger implications of the influence of Nietzsche and Foucault on our public discourse.  

I.

Marriage, like democracy, law, and philosophy, and as I recently learned, rural, is a contested concept – one whose sense, reference, and normative force depends on who uses it and why.   Marriage is an honorific label, conferred upon some relationships (usually but not always sexual), which our society has deemed it desirable both to affirm and control.  The honorific marriage is conjoined with an age-old definition, observed even in societies where open homosexuality was common, of marriage as a relationship between a man and a woman (though not in all societies only one woman).    That the emperor Nero is reported to have ‘married’ Sporus (whom he had  had castrated) as a man and Doryphorus as a woman shows nothing about what was considered healthy or normal even in imperial Rome.   The moral of the story was that, as emperor, Nero could do – or though he could do — whatever he wished.[3]  

As an honorific marriage is inevitably inegalitarian, since it favors some relationships, and consequentially some sexual dispositions, over others; it is therefore under pressure in what has been aptly called a culture of mandatory relativism.  Those who object to the inegalitarian dimensions of the concept will want to disestablish marriage, while permitting it to exist as a private arrangement recognized by churches and other non-state communities, not extend state-recognized marriage to same-sex couples or polygamous associations.   Such a view is suggested by Douglas Laycock, [4] by Nancy Polikoff, [5] and by Tamara Metz.[6] 

 In this essay, I do not put sneer quotes around marriage where the parties are of the same sex or more than two in number, but beg no questions thereby.  For people who think such ‘marriage’ a contradiction in terms, or a metaphysical absurdity, may read the phrase as we read counterfeit coin and decoy duck.  One defender of same-sex marriage declares that “allowing two people of the same sex to marry shifts that institution’s message.”[7]  And to change the message of an institution is to change the meaning of the corresponding word.   Likewise, the phrase traditional marriage may suggest bride prices and the like.  I am referring to the understanding of marriage that the majority of Americans still hold, as a relationship between a man and a woman, in intention a least permanent, from which offspring characteristically though not invariably follow

Nor is the question of marriage the only example of conceptual conflict in the contemporary world.  We dispute whether elective abortion is health care, an impoverished suburban area is rural, and whether a transsexual, before or after the operation, is a woman or a man.    The problem of communication across an intellectually revolutionary divide therefore arises.[8]  

There are two different ways of responding to this situation.  One of these defines a particular sense of marriage, and hence also a particular version of the institution itself, as ‘natural.’  Sometimes this contention is made by appeal to revelation, or to the self-understanding of a particular faith-community.  Thus the recent Pastoral by the American Roman Catholic Bishops quite properly begins by evoking the Catholic marriage ritual.[9]  A strictly philosophical defense of the idea of natural marriage as a “two-in-one flesh communion” rooted in “reproductive type acts,” [10] must overcome five obstacles if it is to persuade Protestants and Jews, not to mention unbelievers.

First, there are relationships virtually everyone calls marriages that are difficult to view as rooted as in reproductive type acts.  If the bride has undergone a hysterectomy, pregnancy and childbirth on her part would involve as radical a miracle, or nearly so, as a man’s conceiving.  (In the recent case, the person said to have given birth as a man was a transsexual whose female reproductive organs were intact.) [11]  Perhaps the sexual acts of a sterile couple are ‘reproductive type’ in the way an anencephalous infant is a rational animal, but this is to explain a difficult case by a difficult case. [12]  One can circumvent this obstacle by building heterosexuality, even apart from its reproductive potency, into our understanding of natural marriage.  For marriage is a way of coping with a central form of human diversity by establishing intimate unions between members of the two sexes.[13] This view may be correct, but it is useless in arguing with those who are inclined to support same-sex marriage.

Second, the institution that has most carefully attempted to embody ‘natural’ marriage in institutional forms is committed to the view that many relationships conventionally understood, even in the most conservative circles, as marriages are not such.   For the Catholic Church holds that true marriage is indissoluble, and that ‘marriages’ that follow divorce are consequently non-marriages.  (This is a different proposition from the commonplace observation that divorce, especially where there are children, is a tragedy.)   But the Church also grants annulments on a variety of grounds.  As an official spokesman puts it, 

When couples do separate and divorce… the Church examines in detail their marriage to determine if, right from the start, some essential element was missing in their relationship. If that fact has been established, it means the spouses did not have the kind of marital link that binds them together for life.”[14]  

In such circumstances, and they are fairly common, it turns out that a couple conventionally regarded as married, and presumed by Church authority to be such until their relationship failed, was not married at all. 

Third, also ad hominem to Catholics, the (admittedly exceptional) marriage of the Blessed Virgin Mary and St. Joseph is traditionally regarded as sexless.   If so, they did not engage in reproductive type acts or enjoy one-flesh communion.  Yet their relationship is regarded both as true marriage and as a model for the marriages of ordinary people.

Fourth, all natural law arguments face a common problem:  they frequently fail to convince.  The persistence of moral disagreement is a problem for utilitarians and Kantians as well, but if we claim that our understanding of marriage is rooted in human nature, we are driven to the claim that (in the words of the movie Dr. Strangelove) large numbers of our fellow citizens are “deviated preverts.” [15]  Or else we must go beyond philosophical reasoning and join theologians in their talk of original sin as an explanation of entrenched moral error.

Fifth, even if a purported marriage is not such by nature, it can be so by legal fiction.  If all the corporations that, legally speaking, had their headquarters in Delaware, in fact did so, there would be no room in Delaware for anything but corporate headquarters.  Likewise a Massachusetts marriage (whose two-woman version used to be called a Boston marriage) might be a marriage by courtesy.

II.

Such being the case, it seems better to plunge into the maelstrom of contemporary controversy rather than attempt to impose upon it a conception of marriage a priori.  I begin with what was until just recently the socially established understanding of marriage, as a relationship between one man and one woman, and examine the implications of various modifications of it. I recall the classical Roman definition, which contributed to the recognition of non-ceremonial ‘common law’ marriages:  “a monogamous union if a man and a woman, total community of life, a partnership according to human and divine laws.” [16] I would have included in my older definition of marriage — permanence, at least in intention.  But the Federal Defense of Marriage Act, 1996,[17]  echoed in the legislation of many States,[18] does not exclude even explicitly temporary marriages.

I propose the following thesis. Individuals, communities, and jurisdictions who uphold same-sex marriage, at least if they do so as a matter of principle, ought also to defend polygamous marriage.  Whether they ought also to accept incestuous, polyandrous, group, or cross-species marriage; marriage for a fixed period of time, marriage to a robot or fantasy partner, or various sorts of threesomes is a matter for further inquiry.  

The case for same-sex marriage, briefly put, is as follows:

(1)  Some people either are (a) immutably homosexual in their inclinations, (b) identify themselves as gay or lesbians, or  (c) have concluded, after due reflection, that a union with a person of the same sex is better for them than celibacy or a heterosexual union. 

(2)  Such persons deserve equality of legal status with heterosexuals.  Alternatively, differences of treatment between homosexuals and heterosexuals – what is here called ‘discrimination’ – deprive homosexuals of full citizenship. [19] 

Therefore (3) same-sex marriage should be legalized

Te argument as a whole, though not logically tight, seems valid.[20]    Premise (1) of this argument seems true, though disjunct (a) concerning immutability is controversial.  Hence our attention must be concentrated on premise (2), which requires that homosexuals and heterosexuals be allowed the same right to marry persons of their choice.  I here contend that this argument, if sound, also applies to polygamists.  Hence the thesis of this essay is that, if we are prepared to redefine marriage to include the relationship between same-sex couples, we ought to also allow polygamous associations.  
            Advocates of same sex marriage have greeted the polygamy argument with impatience.   The first sentence of “Homosexuality and the P[olygamy] I[ncest] B[estiality] Argument” by John Corvino is “Some bad arguments never die.” [21]  Nor are such sentiments an isolated phenomenon. [22]  Corvino’s article concerns the morality of homosexual relationships, not their legal recognition as marriages, but many of the considerations at work in the arguments are the same.  Wolfe’s response to Corvino focuses tightly on the morality of sexual acts.[23]  I am concerned with institutions, not with personal morality, and so need not consider issues such as contraception, masturbation, non-coital heterosex,[24] and non-marital cohabitation.  That an argument is made by Conservative politicians and columnists does not in the least indicate that it is unsound. 

My thesis is conditional, and can be interpreted in two ways.  One can interpret it as presenting a reductio ad absurdum of Cambridge Liberal (hereafter Liberal) understandings of marriage, of which proposals for same-sex marriage are only one manifestation.  (The capital L distinguishes one contemporary version of liberalism from the sense in which virtually all Americans are liberal.) [25] 

If we interpret the thesis in this way, it does not require us to agree with. James Donovan when he says,

The conservative recourse to this slippery slope argument against same-sex marriage signals a concession–formal to the argument itself, but actual in the choice of the argument at all–that the complaint against same-sex marriage based upon its intrinsic qualities has failed. Proponents of gay marriage, in other words, no longer have to prove that it is good, or even that it is not morally bad.[26] 

To the contrary we are arguing against those people who say that same-sex marriage is good, that they are committed to holding a position they may want to reject.  Even people who find the idea of two men or two women marrying a joke in questionable taste, or even that homosexual practices are abominable because contrary to the order of creation, can offer reasons to those whose perceptions are different from their own.

The second interpretation, however, accepts that same-sex marriage is the wave of the future.   If crucial elites within American society are irrevocably committed to Liberalism about marriage, in a sense that requires the legal recognition of same-sex unions,[27] then my arguments point to a way of defending older understandings of marriage against the moral lessons embodied not only in same-sex marriage but also in no-fault divorce.  For if the state withdraws from the task of distinguishing marriages from less valued relationships, then traditions will be free to maintain their own definition of marriage in their communities and act accordingly.   Metz has observed, “Were the state to withdraw from its current, contested role, alternative but more effective sources of ethical authority would likely fill the void”[28]  On such premises, marriage would be a matter for the church, synagogue, mosque, New Age spiritual group, humanist association, or group of friends and family members, of which the parties are members or which they approach to ratify their relationship.[29]  Intra-communal disputes about marriage, like the “Who is a Jew?” question[30] or the debates among contemporary Anglicans/Episcopalians about sexual issues,[31] will be resolved, if otherwise irreconcilable, by schism. (The state will have to decide the resulting property disputes.)  Whether non-state communities would in fact provide the needed ethical authority to support disestablished marriage is one of the points where political philosophy becomes a matter of risk-assessment.

The expressions civil union and domestic partnership equivocate.   Either such unions are private contractual relationships, which the parties are free to enter but which impose no obligations on third parties, or else they are state-sponsored institutions which may infringe on the consciences of those who object to them.[32]   The claims of equality apart, the desire to impose affirmative obligations on unwilling others is the principal reason why advocates of same-sex marriage insist on marriage.

On both interpretations, my argument concerns the logic of the relevant reasons, not historical prophecy.  The charge of arbitrary discrimination against polygamists is difficult to answer, unless one is prepared to assert that marriage is monogamous by definition.  Nor does my argument suppose that same-sex marriage would be acceptable, except for “slippery slope” considerations linking it with polygamy.  On the contrary, my argument is of the same form as that which maintains that abortion and infanticide, apart from differences in public sentiment, are the same sort of actions – an argument that cuts both ways.[33]  I do not contend that same-sex marriage and polygamy are identical forms of behavior, even morally, but that the arguments for the first are also arguments for the second.   As far as effects are concerned, assessing them requires at least a generation.   The experience of other societies is illuminating, though sorting out causes and effects can be tricky.[34] 

III.

A.

The Supreme Judicial Court of Massachusetts,[35] in its influential decision concerning same-sex marriage, admits that it is redefining marriage.[36]  (In contrast, the Vermont Supreme Court stopped short of requiring the ‘m-word’ for same-sex relationships, [37] though the legislature proceeded to drop the other shoe.)[38]   It is the right to marry in a redefined sense that gay and lesbian advocates are now attempting to establish across the nation. [39]  The issue under consideration here is whether, once marriage has been redefined in this way, there are principled grounds for resisting a further redefinition.

The California decision[40] overruled by Proposition Eight after a bitter campaign[41] is instructive, since it specifically rejected the Attorney-General’s argument that ‘domestic partnerships’ were sufficient to satisfy the requirements of the California Constitution.    The California Supreme Court said that marriage is “of fundamental importance to both to society and to the individual” and that the state is under an obligation to “to grant official, public recognition to the couple’s relationship as a family” – a clause that raised the prospect of the active promotion of homosexual unions, say through the public schools. [42]   When it said that marriage provides   “a ready and public means of establishing the legal basis of one’s parental relationship to one’s children, “it evoked considerations that apply – centrally at least — to biological fathers in heterosexual relationships.  A biological mother does not require certification of her maternity, and adoption will secure the rights of non-biological parents. But the California court failed to say why this institution is of such importance to either society or the individuals concerned that the state must recognize and support it, and hence also failed to explain why such reasons extend to same-sex couples and did not extend to polygamous groupings.   As Metz puts it, “The California court … seems to have stumbled upon something it wants both to embrace and deny, to protect and reject:  the something that makes marriage special.”[43]

 There cannot be a moral, legal, or constitutional right to marry whomever you want.  He or she may not want to marry you.  Laws limiting marriage to opposite sex couples do not distinguish between men and women, nor is the impact of such laws noticeably harsher on either sex. Nor is discrimination against the homosexually oriented exactly the issue.  For it was always legally possible, though not advisable, for gay men and lesbians to marry a member of the opposite sex – for the purpose of procreation or some other reason.  The party asserting (unfair) discrimination in disputes about same-sex marriage is, in short, not gay men or lesbians as individuals, but same-sex couples desiring recognition as spouses.  The analogy with anti-miscegenation laws makes the issue clear, though defenders of tradition respond that sexual difference is pertinent to the nature of ends of marriage in a way racial difference is not.[44]   Hence the question is whether such distinctions should count as unfair, as nearly everyone would agree in the case of refusal to allow mixed race couples to marry, or merely an instance of the classifications that any legal system must make.   For all law discriminates:  statutes forbidding sex with children discriminate against those can get sexual gratification only from children.[45]

 The attempt to define, on principled grounds, an official list of oppressed minorities, classifications unfavorable to whom are discriminatory,  has failed.  Evan Gerstmann reports suspect classification approach, used by the judiciary to resolve equality issues, is in shambles.

[The] criteria [of suspect classification] have proven to be completely impossible to work with.  The Court has utterly failed to define any of the crucial terms such as ‘history of discrimination,’  ‘immutability,’ and ‘political powerlessness.’  It has continually applied these terms so inconsistently as to make them virtually useless in framing a legal argument.  ….  [Moreover,] for practical purposes the constitutional doctrine concerning suspect classes since the mid-1970’s. … The only time the Court used [these] criteria … is to deny groups suspect status. [46]   

It is at least as arguable that ‘discrimination ‘against the polygamous reflects irrational prejudice as that discrimination against those desiring same-sex unions. That marriage in our society is by definition monogamous is no more (and possibly no less) persuasive than the fact that it is by definition heterosexual. 

The issue of polygamy cannot be ignored,[47] dismissed as unreal,[48] or treated as peripheral to the debate.[49]    For polygamy has been widely practiced in many societies, although only by men who could afford it.  Moreover, polygamy is now a live issue in Russia,[50] and immigrants to Europe and America from polygamous countries will bring multiple wives with them and demand both recognition and social services for them all.  National Geographic has recently published an article on polygamy in America that lends color to the claim that Fundamentalist Mormons and other polygamous groups are a persecuted minority.[51]

 In this context, I examine the pertinent arguments.  Polygamous groups can assert all the interests that gay and lesbian couples assert, in gaining legal recognition for their associations.  In a celebrated (or notorious) passage, a plurality of the Supreme Court asserted. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the concept of human life.”[52]   Chai R. Feldblum explains the doctrine as follows 

I use “identity liberty” to describe the liberty the Casey plurality to capture in its “mystery of human life” description, a description repeated by Justice Kennedy in the Lawrence majority. … [Such liberty] may be a person’s liberty as a parent (including the decisions whether to have a child and how to raise a child), a person’s identity as a spouse or lover (deciding what form of intimacy one wishes to engage in, a person’s racial, ethnic or national identity, or a person’s gender identity.[53]

Our as she puts it elsewhere, “These are not small decisions. These are those big decisions in life that go to the core, essential, elements of our selves.”[54] 

The decision to marry polygamously, at least if those spouses already in place consent, is as good an example as any of a decision falling within identity liberty so defined.  For polygamy is part of the practice of some religious groups, and ‘polyamory’ part of the self-understanding of many men and some women. [55]   (By polyamory I mean the propensity to maintain more than one romantic relationship – as opposed to a brief sexual encounter — at one time or in close sequence.)   Moreover, as Corvino points out against Christopher Wolfe, polygamy is “open to procreation … (indeed, abundantly so).”[56]

But the rhetoric of identity liberty is so open-ended that it can be used to justify anything.    Hence a narrower argument is desirable.  Though the argument is in tension with the language of identity liberty, it is often said that some people are, for genetic or other reasons, inescapably gay or lesbian.  No other form of sexual expression is available to such persons.  But for every person that is immutably homosexual, there are a host of people who are immutably polyamorous. For some such people their polyamorous nature will be “a profound element of human identity” in Andrew Sullivan’s language.[57]  And there are socio-biological reasons to believe that such men will be abundant, since promiscuous behavior enables men to distribute their genes widely.  In any event, it would be absurd to regard polyamorous inclinations in a man as in any sense pathological.

If such a man finds himself linked to a wife who no longer excites his desires, he is as effectively denied legitimated sexual expression as any gay man or lesbian.  Divorce is always an option, and many men take advantage of no-fault divorce laws to rid themselves of aging or ailing wives to marry younger women.  But to do so is to leave the older wife adrift.  Polygamy would make it possible for her to retain her place in society, and continue to receive both moral and material support.   To be sure, there is a difference between forbidding someone to marry a particular individual, and forbidding him to marry everyone he wants to marry.  But to make this argument is already to treat monogamy as normative. 

It may be true, as many writers have argued, that polygamy may dilute the emotional bonds between husband and wife, and between father and children.  But it does not seem that we are entitled to impose on minorities our notions of familial intensity. Perhaps contemporary middle-class families would benefit from a cooler emotional atmosphere.  The various forms of anti-social conduct associated with polygamy might be attributed, as they have been with gays and lesbians, to the outlaw status of polygamy.

Lawrence Tribe observes:

The circles that our adultery and bigamy laws have drawn around married couples have established partitions that fall with an undeniably cruel weight upon individuals who fall in love or lust with someone else’s spouse.  But these laws … cut no wide swath through the population to limit the options open to any particular oppressed minority.[58]

This remark holds only if people in polygamous religious and cultural traditions do not count as oppressed, nor do women who prefer “man-sharing” to living without children and male companionship.  One advocate for such women, Mary Mitchell, writes:  “Don’t get me wrong.  I still believe in marriage.  We just need to update some of the rules.” [59]   Or –dropping the reference to oppression – the argument requires that refusal to provide a polygamous option is a less serious restriction than refusal to provide same-sex option. 

There was a serious public attempt in Nineteenth Century America to extirpate the Mormon religion, in part at least because of their practice of polygamy.  The Supreme Court upheld a conviction for bigamy where the husband believed that such a marriage was his religious duty, in part on the ground (hardly cheering to contemporary Liberals) that “polygamy has always been odious among the northern and western nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic or African people.”[60]   In the resulting struggle, many Mormon women supported their men-folk.[61]

At the end of his very helpful discussion of the polygamy issue, Gerstmann attempts to distinguish same-sex from polygamous marriage.

There certainly seems to be a difference between a right to marry who you want and marrying however many people you want.   Multiple marriages raise several legitimate state concerns that same-sex marriage does not. … Polygamy threatens the social safety net by diluting social insurance. … Polygamy could create confusion over the issue of custody, who has final say over the medical decisions in the case of an incapacitated spouse, and so forth.  … Finally, and most importantly, a right to multiple spouses has no logical stopping point.  If a person can have two wives, then why not twenty, fifty, or a thousand?[62]

  A polygamous widow who receives a third of her late husband’s Social Security benefits is better of than she was as a woman whose marriage is unrecognized and has to rely on her own benefits alone.  An easy rule is that the eldest wife should make medical decisions for her incapacitated husband, and that husbands should make medical decisions for their wives, unless the patient plainly provides otherwise or the proxy suffers from a manifest conflict of interest.  The limits of polygamy are provided, not by logic, but by the material and other resources of the would-be polygamist.   And in any case the “no logical limits” argument is one of the most important arguments against recognizing same-sex marriage in the first place.  (I emphasize once again that I am assuming that polygamous wives are of age and aware of one another’s existence.)

Issues concerning kinship, including incest, pose more serious issues for the defender of polygamy.  Confusions about kinship already arise from divorce and remarriage, and even more so from regular homosexual relations, even if not legally recognized; as well as from practices, such as artificial insemination by stranger and surrogacy, that gay rights advocates tend to favor.  If I fell in love with or in lust for my sister’s partner’s son by an unknown father, would this desire count as incestuous?  If I had been a semen donor during the relevant period, so that there was a possibility that I was his biological father, would this change the situation? 

Gerstmann worries about the possibility that “multiple wives might increase the incidence of incest … between half-siblings.” [63]To the extent that incest between half-siblings is more likely than incest between full siblings, it is also less repellent (and in any case the divorce of couples with children already creates this problem). The most difficult problem is that of relations between young men and their fathers’ younger wives, which were strongly tabooed in the ancient world.  But incest could remain a crime, and if polygamy were legal, it would be relatively easily to specify which relationships count as incestuous.  

Finally, many women experience an atavistic abhorrence of sharing their man or their home with another woman.  How much weight we should attach to what Leon Kass calls “the wisdom of repugnance”[64] is a complicated issue, especially since such repugnance varies considerably from individual to individual and from culture to culture.  But advocates of same-sex marriage have already resolved to set the ‘ick factor’ aside.

B. 

 I have so far argued that polygamous relationships, where the wives are of age and aware of each other’s existence, are as deserving of the name marriage as same-sex unions.  But there are reasons why polygamous unions are preferable to same-sex unions.  Such reasons cannot be in the nature of the case be anything like demonstrative, but in practical contexts they carry considerable weight (we may call them “principled prudential reasons”). [65]

 Like monogamous, heterosexual marriage, polygamous marriage provide a regular framework for relations between the two biological halves of the human species, each of which is then able to correct the limitations of the other   This remark may seem to a bit of rhetorical ‘heterosexism,’ more suitable for public advocacy than for philosophical reflection (and so one reader found it).  But if we rule it out, we also rule out appeal to the special value of life-long committed relationships between two people.  

Moreover, let us assume, as not every one will,[66] that men should be held responsible for the reproductive consequences of their sexual acts (and that, when they are prepared to fulfill their duties, this gives them a legitimate interest in their offspring’s future)..   Such was the view of the founder of English-speaking liberalism, John Locke,[67] as well as of the “saint of liberalism” John Stuart Mill.[68]   Both polygamy and monogamous marriage provide a framework for preventing disputed or conflicted paternity, and for enabling biological mothers and fathers to co-operate in raising the resulting child.  (By conflicted paternity I mean a situation in which both parents and children know that social and biological fatherhood diverge; the use of DNA testing has aggravated this problem.[69] )  A woman who teaches her son baseball is not quite a father; a man who makes his sick daughter chicken soup is not quite a mother.  A father is better placed than a mother to teach his son the meaning of his erections and spontaneous emissions, and a mother is better placed that a father to teach her daughter the meaning of her menstrual periods.

 Polygamy also satisfies the child’s need for a known father as well as a known mother:  as a pair of writers who make every effort to make lesbian parenting seem healthy concede, “It is very normal for children to ask about and long for a father. … We encourage you to hang in there when [your child] works through her grief.”  (They recommend “father fantasies.”) [70]    The view that children require a parent of each sex is, to be sure, controversial among sociologists, but reasonable enough that prospective mothers should not be penalized for acting on it.  Nor does it matter to what extent sexual differences are, as they say, ‘socially constructed’; what matters is that they are real in the experience of children.

There are, to be sure, ‘principled prudential’ arguments against polygamy. (It is my understanding that the Islamic community has generally abandoned polygamy on this sort of ground.[71])  To adapt an argument made by St. Thomas Aquinas, polygamy is inconsistent with even a weak understanding of sexual equality. [72]  If the wives are contemporary women, who believe they have rights to their husband’s time and attention, the strain upon their shared husband will be considerable.  When we add the demands of caring for the resulting children, a good polygamous husband will have to be a superman.

 Another objection to polygamy is that polygamous wives (or polyandrous husbands) may quarrel among themselves or gang up on their common spouse. There is the problem of the superfluous man, which Fundamentalist Mormons are reputed to solve by expelling boys. As Jonathan Rauch has put it, “if one man has two wives, it follows that some other man has no wife.”[73]    A similar problem arises, however, as a result of same-sex marriage, should it become more common among women than among men, for men seeking stable heterosexual relationships. [74]  Such a problem has afflicted women in areas a high concentration of homosexual men, leading some of them to go to Alaska, where, as it is said, “The odds are good although the goods are odd.”  The force of this argument depends on two plausible empirical assumptions:  the legitimation of same-sex marriage will make same-sex relationships (and consequently gay and lesbian orientations) more socially acceptable, and that female sexuality is more strongly influenced by the social and political climate than male (otherwise the leftover males could console themselves with one another). [75]

We are concerned here, not with our ideal of marriage, but with minimum requirements of acceptability for a marriage license.  Those who enter marriage of any sort should be above the age of consent.  To prevent fraud and other forms of abuse, the state should require that a new polygamous wife should be made aware of her sister wives, and that the wives in possession should consent to any new addition to the household.  But, beyond that, if we accept the rest of the argument made here, women should be free to enter into an unequal relationship if they so choose (the alternative might be childlessness or raising a child alone).  I might think that a couple who decides not to have children, but to have dogs instead, is behaving in a less than ideal fashion.  The same is true of a marriage for reproductive purposes only, in which the bride’s family (and the bride herself under pressure from them) regards the groom as a ‘sperm donor.”    The first of these marriages, and possibly the second, would be regarded as invalid in Catholic canon law.  But there is no case for refusing to recognize these relationships as civil marriages.

Polygamy, it may be said, is inconsistent with our notions of romantic love, whereas there can such love between same-sex partners.[76]  The word romantic is crucial here, since there is love between parents and children, between fellow soldiers, or between siblings.   Romantic love includes, however,  the Platonic ideal of chaste homoerotic attachment, the parties to which, like Socrates, might have wives and children as well as boyfriends.[77]  Marriage is irrelevant to such forms of love.   Only if we stipulate that ‘romantic’ love is both exclusive and sexual at least in intention, but do not require parties of opposite sexes, does the concept of romantic love provide a ground for distinguishing same-sex from polygamous relationships.  It seems to me odd that so intimate a feeling should be the ground of a legal as opposed to a personal or a communal relationship.  As Joseph Rauch puts it, “from society’s point of view, the main point of marriage is not, and never has been, to sanctify love.  … In fact, society doesn’t much care whether spouses love one another, as long as they meet their marital obligations.” [78]  Romantic love may even be an enemy to marriage, if it leads spouses to expect violins in the background when they do such things as clean a cat box.

            Corvino questions the relevance of Platonic love in the following passage:

There is no reason  to assume—and indeed, there are good reasons to doubt—that one can  remove the sexual aspect of relationships and have all others remain the same. Sex can be a powerful and unique way of building, celebrating,

            and replenishing love in a relationship. This is one important reason

why heterosexual people have sex even if they don’t want children, don’t

want children yet, or don’t want any more children. It is a reason why

sexless marriages are often cause for concern. To assume that one can

subtract sex without affecting the rest of the equation is to take a naive

and reductionistic view of sexual relationships. This is not to say that

physical intimacy is always connected with other forms of intimacy: sex

is sometimes impersonal, mechanical, or fleeting. But sex is often much

more than that, for heterosexuals and homosexuals alike. The physical

union of the partners manifests and contributes to a larger union.[79]

Sexless heterosexual marriages may be problematic (I would not put it any more strongly), but I for one find nothing troublesome about sexless ‘Boston Marriages,’ or about the corresponding long term roommate arrangements between men (Sherlock Holmes and Dr. Watson may serve as a model).  Sometimes such relationships are sick, but the same is true of relationships of any other sort  

In any case, Corvino’s argument can be made on behalf of polygamous relationships. [80] For Fundamentalist Mormons, the mutual love of every party to a plural marriage, including the nonsexual love of ‘sister wives’ for one another, is crucial to the relationship.  And the conquest of jealously required in sharing a man with other women is part of the spiritual benefit claimed for such relationships.

Corvino responds,

It is true that you can use the same form of argument for PIB relationships: PIB relationships have benefits X, Y, and Z. But whether PIB relationships do

in fact have such benefits will not be settled by looking to homosexual

relationships. Put simply, to observe that many people flourish in homosexual relationships is not to prove that others might flourish in

incestuous, bestial, or polygamous relationships. Whether they would

or not is a separate question—one that requires a whole new set of data.[81]

At this point we are pressed to evaluate two entire ways of life:  one that retains the norm of monogamy but extends it to same-sex couples, and one that retains the norm of heterosexuality but extends it to polygamous groupings.  Corvino observes in another place:

The deep human tendency to disapprove “what we don’t like” often causes us to label our dislikes “unnatural: and to condemn things we do not understand.  The effects of such condemnation – the pain and isolation and fear, the wasted time an energy – are a far greater moral tragedy than sex between consenting adults could ever be.[82]

But this statement applies with at least equal force to polygamous as to homosexual relationships. I suspect that most of my readers have more acquaintance with homosexual than with polygamous or bigamous (as opposed to adulterous) people.

In any case, for the purposes of this essay, we are not concerned with the value of various kinds of relationships to the individuals themselves, but with the reason the larger society may have for recognizing and regulating them. Chief of these is providing a framework for the regular procreation and education of the rising generation.  Some heterosexual marriages are childless, intentionally or otherwise.   But intentionally childless couples can change their minds.  Couples not presently reproducing can build the foundation for later procreation, or co-operate in  raising children already in being. Unwillingly childless couples can adopt children, and thus provide, as gay couples cannot, a family life approximating the cultural norm. (Even if this norm is questionable, children are better off if they can decide for themselves whether to undertake experiments in nontraditional living.) 

Various ways of mimicking heterosexual reproduction reinforce my point. For example, one woman inseminates another with the semen of a man – usually of a stranger.   There are proposals to produce children by fusing ova or even spermatozoa. [83] Whatever the merits of such practices– and the risks of defects from fusing same-sex gametes would seem impermissibly great  — they do not accomplish one central purpose of heterosexual union, which links the love of the man and woman with the fusing of their lineages.  The risk of narcissism and of exclusion of the Other, in homosexual relations is accentuated when two women collaborate to produce a child guaranteed to be female.  Reliance on selective abortion might evade the question of defect if we can stifle our moral repugnance to such procedures, but not if the defects show up in later life.

 Moreover, heterosexual marriage provides for what is, from a social point of view, a secondary purpose of marriage, a stable framework for relations between the two sexes. This purpose may bulk larger in the feelings of the couple themselves than do procreative purposes.   For what heterosexuals characteristically desire from marriage, and what cannot be attained from homosexual relations, is not only affection, pleasure, or even offspring, but also the union with a person of the opposite sex which the union of the genital organs both effects and signifies, and of which children are sometimes the fruit.[84]   (Despite the sacramental overtones of my language, I am here making a strictly philosophical argument.)   Thus I give independent weight to the union of the two sexes, even apart from its reproductive potency; my argument is in this respect different from that of the new natural lawyers.  From society’s point of view, a few people who take part in an institution for reasons other than its central purposes do not seriously affect our shared understanding of that institution.  Recognizing same-sex or polygamous marriages on the other hand redefines the institution as a whole.   If we are prepared to undertake one redefinition, I see no reason why we should refuse the other.

IV

In response, Liberals can stress the centrality of equality to their argument.[85]   The state’s role is larger than merely insuring that all contracts are freely entered into; it also takes a role in forbidding contracts that it deems excessively unequal.  Even if both parties freely consent, it is still illegal for a client and a credit card company to enter into a contract specifying an interest rate higher than the legally determined maximum amount.  And Liberals could argue that a polygamous marriage contract is like this, i.e., that it, too, would be a contract that is so unequal that the state should forbid it even if the parties might freely consent to it.  Liberals could further argue that the existence of practical considerations to the contrary need not override the state’s ban on unequal contracts.  For example, it is easy to imagine situations where it would be in someone’s interest to form a contract with a credit card company at an interest rate higher than the legal maximum.  And Liberals could argue that the case with polygamy would be like this, i.e., that in this case, too, practical considerations do not trump the state ban on a polygamous contract that is, by its nature, very unequal.

Finally, the examples I give of less than ideal marriages which should nonetheless be permitted are marriages which are either intentionally childless or one exclusively reproductive.    But the standard Liberal assumption is that freedom and equality have a special status: they are universal or transcendental.  Liberals, for example, have no problem criticizing other cultures where freedom or equality is infringed, while such

criticism would be prohibited in all other cases.  And so Liberals would have no problem saying that the state should step in and forbid unequal marriage contracts (since equality is on the transcendental list) while also saying that the state should not step in and forbid intentionally childless or exclusively reproductive marriages (since family size and emotional intensity are not on the transcendental list).

            A more radical version of this critique of polygamy, and defense of same-sex marriage, attacks the former, and supports the latter, on the grounds that polygamy reinforces gender roles and is therefore reactionary, and that same-sex marriage undermines them and is therefore progressive.  Being defined at birth as male or female undermines a person’s capacity to define himself or herself however he or she wishes.   The attempt to radically change our understanding of gender can hardly stop with same-sex marriage, however, since this innovation is as likely to devalue heterosexual marriage as to increase esteem for same-sex relationships.  One must go on to ban ‘homophobic’ speech, [86]or at least use public education to indoctrinate children in ‘progressive’ attitudes.[87]  If parents claim the right to home-school their children, or send them to private schools, more draconian measures might prove necessary.  Since I am arguing within a vague consensus that we are living in a free country, it suffices to point out that social engineering of this sort furthers neither liberty nor equality.   For, both intellectually and politically, it requires a vanguard that stands above the rest of society and is authorized by its superior wisdom, or greater degree of commitment, to govern the rest of us for the sake of some distant utopia.

The first problem with this line of argument is that it sacrifices liberty to equality.  No doubt the state could insist that spouses in place consent before a new member should be added to their household, as it could ban marriage, polygamous or monogamous, with a child.    And it might even ban arrangements in which some wives are first- and others second-class.  But if a mature woman freely decides to join a polygamous household, for reasons persuasive to herself, refusing to allow her do so can be justified only on strongly paternalistic grounds, or on grounds the Liberal has already rejected, such a desire to preserve and protect the traditional institution of marriage as good, on the whole, for women, men, and children alike.   There is no reason to believe that all polygamous marriages are so predatory as to count as unconscionable for standard contract doctrine.  And few Liberals want to ban traditional marriage, even in the version where the wife stays home and the husband supports her, though in the view of many writers such relationships are unacceptably inegalitarian.[88]

            A second problem with the argument is that inequality is much more pervasive that the attack on polygamy or traditional heterosexual marriage suggests.  Human beings are always forming hierarchies:  in a same-sex relationship one party is likely to be dominant (though as in a heterosexual relationship power can shift from one party to the other).  In egalitarian political movements there are always leaders and followers.  If we nonetheless hold that all human beings are equal in fundamental dignity, we must do so in the understanding that we are fighting at least one persistent strain in human nature. If we appeal to religious sources of the egalitarian ideal, the same verse in Genesis (1:27) that tells us we were created in the image of God also teaches us that we were created male and female.

            A third problem is justifying the claim that liberty and equality are universal principles, while other considerations equally powerful in human affairs are not.  Not all cultures value liberty and equality as much as we do (or at all).  Friendship in the broadest sense is at least equally important,[89] and it bears on our argument at two points.  First, polygamy allows otherwise lonely women to gain the friendship not only of her husband, but also of her children and sister wives; and, second, a common understanding of marriage contributes to civic friendship – something liberalism in all its forms tends to threaten.   The Liberal understanding of human nature treats our capacity to make rational choices is central and our existence as social, bisexual, animals secondary.   But sidelining flesh-and-blood humanity in this way has devastating implications for familial issues.  For, whatever else they are, families are institutions for enabling young human beings to attain a capacity for rational choice that they do not now possess.

            Finally, equality requires only that like people be treated alike,  and the question whether same-sex or polygamous groups are relevantly different from heterosexual couples, in a way that warrants ‘discrimination’ in matters of marriage, is the central question at issue in our debates.

.

V.

Much discussion of same-sex marriage distinguishes between ‘bracketing’ and ‘engaging’ the relevant moral intuitions.[90]  But, for the purposes of the present argument, it does not matter which course we take.  If we bracket moral and religious views hostile to homosexuality, we need also to bracket such views when they oppose polygamy.  If we engage the relevant moral questions, we must face the difficult question, why homosex[91] is acceptable and polyamorous sex is not.   For even advocates of gay marriage do not necessarily value sexual fidelity:  Andrew Sullivan defends “the beauty and mystery and spirituality of sex, including anonymous sex.”[92]  

A crucial concept in the gay rights argument is that of heteronormativity. As one defender of same-sex marriage puts it, “’Heteronormativity’ is or includes a powerful ethical preference for the same, or for sameness, and is as such antithetical to humanity’s pluralism. … Heteronormativity looms tyrannical over all human sexuality.”[93]   But since the plurality of human sexual behavior includes promiscuity, both homosexual and heterosexual, of the most extreme sort, there is no reason, on this ground, to oppose polygamy once one accepts same-sex marriage.  One might as easily speak of ‘mononormativity’ of ‘polyphobia’ as of their heterosexual counterparts    Then incest, bestiality, pedophilia, and whatever other sexual dispositions one might be able to imagine, are now prepared to demand social recognition.

The thought underlying such rhetoric is derived from Nietzsche and Foucault:   that all socially established evaluations are mere impositions of the collective will-to-power.  If this is so of the privileging of heterosexual monogamy, it is also true of the privileging of liberty and equality, to which advocates of same-sex marriage appeal.  When all of these are swept away, the road is clear to the imposition “new values” by force and deceit.

My argument is directed against individuals, communities and jurisdictions that accept same-sex marriage.  Those who hold firmly to traditional heterosexual monogamy may have other problems, but are not vulnerable to the arguments presented here. Traditional marriage and Massachusetts marriage are different institutions, which uneasily coexist within the same society and sometimes within the skin of a single individual.[94]

[2]  In an e-mail to me, dated June 2, 2010, Douglas Laycock writes, “Philosophy is one thing; law reform is another.  With respect to law reform, I’m a big believer in one step at a time and the art of the possible.”  Defenders of same-sex marriage who think in such terms ought at least to admit that there goal is recognizing polygamous (and perhaps a wide range of other nonstandard) relationships as equivalent to traditional marriage.

[3]  See Seutonius, Lives of the Twelve Caesars, Nero, chaps. 28-29.

[4] Laycock, “Afterword,” in Laycock, Anthony R. Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty (Lanham. MD: Rowman and Littlefield, 2008), secs. IV and V.  The same view has been defended by another contributor to this volume, Jonathan Turley, “A Unholy Union,“ ibid.,, p. 60.

[5] Polikoff, Beyond (Gay and Straight Marriage (Boston:  Beacon Press, 2008)

[6] Metz, “Why We Should Disestablish Marriage,” http://academic.reed.edu/poli_sci/faculty/metz/metz-marriage.pdf, accessed December 24, 2009; and more fully in her Untying the Knot (Princeton:  Princeton University Press, 2010).  Metz points out that Harriet Taylor and William von Humbolt held similar views. (pp. 66-68); for rosters of contemporary scholars who support her proposal, see ibid., pp 165n.24 and 181-82n.38.

[7] E. J. Graff, “Retying the Knot,” Nation, June 14, 1996, reprinted in Philip E. Devine and Celia Wolf-Devine, eds. Sex and Gender (Australia:  Wadworth/Thomson, 2003), p. 334.

[8] See Thomas Kuhn, The Structure of Scientific Revolutions (Chicago:  University of Chicago Press, 1962).

[9] United States Conference of Catholic Bishops, “Marriage:  Love and Life in the Divine Plan,” November 17, 2009.  Available at http://www.usccb.org/laity/LoveandLife/MarriageFINAL.pdf., accessed December 17, 2009.

[10] So for example Robert P. George, “’Same-Sex Marriage’ and ‘Moral Neutrality,’” excerpted from Christopher Wolfe, ed., Homosexuality in American Public Life (Dallas TX:  Spence, 1999), in Devine and Wolf-Devine, eds., Sex, pp. 325-329.

[11] See Alan B. Goldberg and Katie N. Thomson, “Barbara Walters Exclusive: Pregnant Man Expecting Second Child,” November 13, 2008. Available at http://abcnews.go.com/Health/story?id=6244878&page=1, accessed December 23, 2009. 

[12] I am here responding to an argument made by James Hanink in correspondence.

[13] See for example Michael Novak, “Men without Women,” in Devine and Wolf-Devine, eds. Sex, pp. 312-16.

[14] Joseph M. Champlin, “Ten Questions About Annulment,” 

http://www.americancatholic.org/newsletters/cu/ac1002.asp  Accessed December 16, 2009.

[15]  For an example of this approach, J. Budziszewski, The Line through the Heart (Wilmington, DE:  ISI, 2009).

[16] Gorän Lind, Common Law Marriage (Oxford:  Oxford University Press, 2008), pp 32-33, translating the jurist Modestinus (in D. 23, 21):  “Nuptiae sunt conjunctio maris et femininae et consortium omnis vitae divini et humanae iuris communicatio.”

[17]  ‘‘In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife” (sec. 3). And so far as I can see, the States might still be required to recognize other States’ polygamous marriages, so long as they do not involve “a relationship between persons of the same sex” (sec. 2).

[18] The Ohio Defense of Marriage Act, 2004, provides:  ”A marriage may only be entered into by one man and one woman. … Any marriage between persons of the same sex is against the strong public policy of this state.  Any marriage between persons of the same sex shall have no legal force or effect in this state… Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”  http://www.aproundtable.org/issues/doma_nov21.html  posted February 9. 2004, accessed January 2, 2010.  California’s Proposition Eight, 2008, reads as follows:  “Only marriage between a man and a woman is valid or recognized in California” (Wickepedia, s.v.  ”Proposition Eight”).

[19] For the citizenship argument, see Joseph Raz, “Liberalism and Trust,” in R. George, ed., Natural Law, Liberalism, and Morality (Oxford:  Clarendon Press, 1996), and the discussion of Raz’s argument in Wolfe, Natural Law Liberalism (Cambridge:  Cambridge University Press, 2009), chap. 5.

[20]  The argument is  not valid if (2) is interpreted in prima facie terms, since opponents of same-sex marriage advance important social interests justifying ‘discrimination’ in this case.

[21] Ethics 115 (April 2005): 501–534.   At the end of the argument he writes of “irrational panic” and in another place that “the one thing [PIB] has nothing to do with the other [homosexuality].” “Homosexuality, Harm, and Moral Principles,” in Laurence Thomas, ed., Contemporary Debates in Social Philosophy (Malden, MA:  Blackwell, 2008), p.90.   

[22]  For similar sentiments see James M. Donovan, “Rock-Salting the Slippery Slope: Why Same-Sex Marriage is not a Commitment to Polygamous Marriage,” Northern Kentucky Law Review 29 (2002): 521ff.

[23] Wolfe, “Homosexual Acts, Morality, and Public Discourse,” Thomas, ed., Debates , chap. 6, esp. sec.3

[24]  I find the expression heterosex useful, though some social conservatives find it unduly friendly to the gay cause.

[25] For an attempt to use this broader sense of liberalism to circumvent contemporary ideological barriers, see Wolfe, Liberalism, especially chap. 7.

[26] Donovan, “Rocksalting,”  pp. 589-90

[27] For a discussion that suggests that the Supreme Court may be so committed, see David Masci and Jesse Merriam (both of Pew Research Center’s Forum on Religion & Public Life),”The Constitutional Dimensions of the Same-Sex Marriage Debate,” July 9, 2009.  Available at http://pewforum.org/docs/?DocID=425, accessed December 16, 2009.

[28] Metz, “Disestablish Marriage.”

[29] In the UK, the distinction between marriage as a religious and as a civil institution is better understood than in America, though the line between state and society is more blurry.   Prince Charles married his long-time companion Camilla, now Duchess of Cornwall, in a civil ceremony, from which the Queen absented herself.  They then had their union ‘blessed’ in a penitential ceremony over which Archbishop of Canterbury Rowan Williams presided.

[30] On this dispute, see Jack Wertheimer, A People Divided (New York:  Basic Books, 1993), chap. 9

[31] On this dispute, see Stephen Bates, A Church at War (London:  Tauris, 2004); R. R. Reno, In the Ruins of the Church (Grand Rapids, MI:  Brazos, 2002); and Ephraim Radner and Philip Turner, The Fate of Communion (Grand Rapids, MI:  Eerdmans, 2006).

[32] See Turley, “Union,” Laycock, Picarello, and Wilson, eds.,-Marriage and Liberty, pp. 78, 80, 95-97, on the external effects of civil unions; and Mark Stern, “Same-Sex Marriages and the Churches,” ibid., p. 223n.224, on those of domestic partnerships.  

[33]  For a defense of both practices, see Michael Tooley, Abortion and Infanticide (Oxford:  Oxford University Press, 1988).   

[34] For one view, see Stanley Kurtz, “The End of Marriage in Scandinavia,” Weekly Standard 9, no. 20 (February, 2004).

[35] I here limit myself to judicially established same-sex marriage, since such establishment involves the strongest claims to be acting on principles that justify the ‘trumping’ of countervailing state, communal, and individual interests.  See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.:  Harvard University Press, 1977).

[36] Goodridge v. Massachusetts Department of Public Health, 309 Mass. 309 (2003).  .  

[37] Baker v. State, 744 A 2^d   864  (Vt., 1999). 

[38] On why the ‘m-word’ matters, see Metz, Knot, chap.4, who proposes to remove the state from participating in its definition.

[39] For a  State Supreme Court decision that did not follow Goodridge, see Frank Conaway, et al. v. Gitanjali Deane , et al.,  (Maryland Court of Appeals, September Term 2006).   http://mdcourts.gov/opinions/coa/2007/44a06.pdf., accessed December 16, 2009.

[40] In re Marriage Cases, 43 Cal. 4^th 757 (2008). My analysis draws on Metz, Knot, pp. 37-46.

[41] For the harassment of supporters of Proposition Eight, see Jesse McKinley, “Marriage Ban Donors Feel Exposed by List,” http://www.nytimes.com/2009/01/19/us/19prop8.html, posted January 18, 2009, accessed January 29, 2010.

[42]  In Lexington, Massachusetts, first grade students were assigned a book entitled King and King, which celebrated same-sex marriage in a fairy-tale context (no pun intended). The courts brushed aside parental objections on the ground that “Diversity is a hallmark of our nation.”  CNN, American Morning, April 20, 2006; Susan Bushey, “Lawsuit filed by Parkers, Wirthlins Dismissed,” Lexington Minuteman, February 23, 2007; Jonathan Saltzman, “Same-sex Teaching Upheld,” Boston Globe, February 24, 2007

[43] Metz, Knot, p.43

[44] Moreover, while anti-miscegenation laws keep the races apart, defining marriage as heterosexual brings the sexes together.  The proper analogue to traditional understandings of marriage is a bizarre law requiring spouses to be of different races.

[45]  These observations are required by remarks such as the following.  “The new territory we stake is not predicated on any other assumption that the Constitution, properly understood, offers nothing less than full and equal citizenship before the law, and after, and that its protections are sincere, not facetious.”  Gordon A. Babst, “Introduction,” in Gordon A. Babst,  Emily R. Gill, and Jason Pierceson, eds., Moral Argument, Religion, and  Same-Sex Marriage (Latham, MD.:  Lexington Books, 2009), p. viii.

[46] Gerstmann, Same-Sex Marriage and the Constitution (Cambridge:  Cambridge University Press, 2004), pp. 62-63.

[47] The word polygamy does not appear in the index of Polikoff, Marriage (nor does bisexuality, which raises the prospect of threesomes); she extends the civil partnerships that in her view should replace marriage only to “same-sex couples” (p. 132; my emphasis). 

[48] Richard Parker says, “Since the life of the law is (and should be) democratic politics – not logic – the legalization of other unions will occur only if and when there is widespread public sentiment favoring such an expansion of marriage.  I don’t foresee that soon; do you?”  In Lawrence Tribe and Richard Parker,  “Judicial Activism and

Gay Marriage:  A Debate,” Harvard Law Bulletin (summer 2004): 8ff., reprinted in John Arthur and William H. Shaw, eds., Readings in the Philosophy of Law, 4^th edition (Upper Saddle River, NJ:  Pearson/Prentice Hall, 2006), p.  608. 

[49]  Metz, Knot, allows that polygamous groups might be granted the status of  I[ntimate] C[are] G[iving] U[nion]s  with which she proposes to replace state-sponsored marriage (p. 147), and that such groups should also be free to call their unions marriages without risking prosecutions for bigamy (p, 141).   But she also says that polygamous unions are “not … common enough to be include on the list” and “too provocative to include without explanation” (p. 179n.12).  So same-sex unions are not provocative?

[50] See Reuters, April 7, 2009, http://www.interfax-religion.com/?act=news&div=5896; Moscow Times, December 24, 2009.  http://www.themoscowtimes.com/news/article/a-muslim-revival-of-polygamy-and-camels/396767 both accessed December  26, 2009

[51] Scott Anderson, “Polygamy in America,” National Geographic 217, no.2 (February 2010): 45-57.

[52] Planned Parenthood of S.E. Pennsylvania v. Casey, 505 US 833, 851 (1992), quoted and followed in Lawrence v. Kansas, 539 U.S. 588, 574 (2003).

[53]  Feldblum, “Moral Conflict and Conflicting Liberties,” in Laycock, Picarello, and Wilson, eds.,  Marriage and Liberty, p. 139

[54] Feldblum, “The Right to Define One’s Own Concept of Existence,” Georgetown Journal of Gender and Law 7 (2006). 

[55] Corvino says that “very few people in contemporary Western societies seem interested in polyamorous relationships (a relationship with one partner is challenging enough).”  “PIB Argument,” p. 528.  What planet is he living on?

[56] Corvino, “Homosexuality,” p. 91.

[57] Sullivan, “Three’s a Crowd,” New Republic, June 17, 1996.

[58] Tribe in Parker and Tribe, “Judicial Activism,” p. 608.  Another version of the “options” argument is provided by Jonathan Rauch, “Marrying Somebody,” in Andrew Sullivan, ed. Same-Sex Marriage:  Pro and Con (New York: Vintage, 1997), pp. 285–88.   I use the Web version published by the Independent Gay Forum, http://www.indgayforum.org/news/printer/26894.html, accessed May 19, 2010.

[59]See Mary A. Mitchell, “Shortage of Eligible Men May Require New Rules,” Chicago Sun-Times (October 22, 2000):  24A.  I am indebted to the late Eleanore Devine for this reference.

[60]  Reynolds v. United States, 98 U.S. 145, 165 (1879).

[61]As David Chambers, “Polygamy and Same Sex Marriage,” Hofstra Law Review 26 (1997):  66-67, points out.

[62] Gerstmann, Same-Sex Marriage, pp. 104-05.  His whole discussion may be found at pp. 99-105.

[63] Ibid., p. 105.

[64]  Kass, “The Wisdom of Repugnance,” New Republic 216 (1997).

[65] I take this expression from Wolfe, Liberalism, pp. 242-47.

[66] The nature, sources, and extent of parental obligation is one of the points at issue in the abortion debate.   See Keith Pavilschek, “Abortion Logic and Parental Responsibilities,” in Louis Pojman and Francis Beckwith, eds.. The Abortion Controversy (Belmont, CA:  Wadworth, 1998), and Andrew Peach, “Abortion and Parental Obligation,” Life and Learning 14 (2004):  193-219  A group called the National Center for Men^TM advocates “Roe v. Wade for Men.”    Press release available at http://www.nationalcenterformen org/page7.shtml.

[67] See especially his Second Treatise, para. 56. As Thomas West points out in his Witherspoon Lecture (Family Research Council, 2001), Locke was in contemporary terms a social conservative. There are, however, elements of this thought that might be (and have been) invoked to undermine his professed views. 

[68]Mill, On Liberty, chap. 5. Mill also called for tolerance for Mormon polygamy (ibid., chap. 4).

[69] See Ruth Padawer, “Who Knew I Was Not the Father?” New York Times Magazine, November 17, 2009, http://www.nytimes.com/2009/11/22/magazine/22Paternity-t.html?pagewanted=all, accessed December 16, 2009.

[70] D. Merillee Cluns and G. Dorsey Green, The Lesbian Parenting Book (Seattle, WA:  Seal Press, 1995), pp. 54-55.  April Martin, The Lesbian and Gay Parenting Handbook (New York:  HarperPerennial, 1993), p. 192, puts the matter this way, “Some children [of lesbian and gay couples] do express an intense longing for the other biological parent, talking about it frequently and emotionally. … It is also true that what is unimportant today may surface tomorrow with urgency.”

[71]See Gamal A. Badawi, “Polygamy in Islamic Law,” in which polygamy is defended as the lesser evil in some circumstances, both individual and social. http://www.al-islamforall.org/litre/Englitre/polygainis.htm.  Accessed January 6, 2010.  I am indebted to James Devine for this reference.

[72] Thomas Aquinas, Summa Contra Gentiles, Bk. III, chaps. 123-24.

[73] Rauch, “Marrying Somebody.”

[74] I owe this point to Corvino, “PIB Argument,” p. 528. 

[75] For a discussion supporting the second of these claims, see Arlene Stein, “From Old Gay to New,” reprinted in Devine and Wolf-Devine, eds., Sex, pp. 128-135

[76] There is an informative but confused discussion of this issue in Donovan, “Rocksalting,” pp. 557-563.

[77]Martha Nussbaum, “Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies,” Virginia Law Review 80, no. 7 (October, 1994):  1515ff, has denied that Platonic love requires abstention from genital sex.  (Or she has reduced this claim to a generalized hostility to sexuality that if taken seriously would mean the end of the human race.)   For replies to Nussbaum, see John Finnis, “’Shameless Acts’ in Colorado.” Academic Questions 7, no. 4 (1994), 10-41; and Robert George, “’Shameless Acts’ Revisited: Some Questions for Martha Nussbaum,’” Academic Questions 9 (winter 1995-96): 24-42.  For a critique by a Platonist who is also critical of Finnis, see John M. Rist, “Plato and Professor Nussbaum on Acts ‘Contrary to Nature,’” in Mark Joyal, ed., Studies in Plato and the Platonic Tradition (Aldershott, UK:  Ashgate, 1997), chap. 5.

[78] Rauch, ““Marrying Somebody.”

[79] Corvino, “PIB Argument,” pp. 512-13.

[80] Incidentally, Corvino errs when he says, “there are no such things as polygamous

“acts,” strictly speaking.” (ibid., p. 503).  If there can be marital acts – i.e., sexual acts that consummate or continue a monogamous marriage, so there can be polygamous acts, i.e. sexual acts that consummate or continue a polygamous relationship.

[81] Ibid., p. 513.  I consider this argument only insofar as it applies to polygamy, not incest or bestiality.

[82]  Corvino, “Homosexuality,” p. 91.

[83] As was suggested by William Eskridge in a debate with Gerard Bradley on same-sex marriage at Providence College (April, 2010).

[84]  E.g. John Finnis, “Law, Morality, and ‘Sexual Orientation,’” Same Sex: Debating the Ethics, Science, and Culture of Homosexuality, ed. John Corvino (Lanham,   MD: Rowman & Littlefield, 1997), criticized in Corvino, “PIB Argument,” pp. 515ff.

[85] This section paraphrases and responds to arguments suggested by Josef Velazquez in correspondence.

[86]  For detailed discussion of the freedom to preach against same-sex marriage, see Marc D. Stern, “Same-Sex Marriage and the Churches,” in Laycock, Picarello, and Wilson, eds., Marriage and Liberty, sec. I.

[87] See note 42.

[88]  But see Susan Moller Okin, Justice, Gender, and the Family (New York:  Basic Books, 1989) and her co-authored work, Is Multiculturalism Bad for Women? Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, eds., (Princeton:  Princeton University Press, 1999).   For a detailed critique of Okin, see Celia Wolf-Devine, “The Hegemonic Liberalism of Susan Moller Okin,” in Wolfe, ed., Liberalism at the Crossroads, 2nd edition (Lanham:  Rowman and Littlefield, 2003), chap. 3.  .

[89]  Aristotle for example says, “Without friends one would not choose to live, though he had all other goods.” Nicomachean Ethics 1155 a 5, trans. W. D. Ross in Richard McKeon, ed., Basic Works of Aristotle (New York:  Random House, 1941).                                                

[90] For defenses of same-sex marriage that avoid bracketing, see Babst, Gill, and Pierceson, eds., Moral Argument.  Neither monogamy nor polygamy nor fidelity appears in the index of this book.

[91]  See note 24.

[92] Sullivan, Letter to the Editor, Salon.com, http://www/salon.com/1999/12/15/sullivan, accessed 21 September 21, 2005.   He is summarizing the argument of his Love Undetectable (New York:  Knopf, 1998).

[93] Gordon A. Babst, “Consuming its Own?” in Babst, Gill, and Pierceson, eds., Moral Argument, pp. 184, 198.

[94] I am indebted to the Roman Catholic diocese of Portland, Maine for its well researched contribution to the same-sex marriage debate. Discussions with Patrick Breen, James Devine, James Hanink, Arthur Jackson, Christopher Lutz, George Rutherglen, Peter Simpson, Josef Velazquez, Patrick Walker, and Celia Wolf-Devine, as well as the comments of several anonymous readers, were also invaluable.