Monday, June 29, 2015

Definition Uber Alles: The Obergefell Dissent

I am puzzled by the dissenting opinion in this case.  The majority opinion is, I think, too rhapsodic but ultimately legally sound.  The dissent on the other hand is neither, and I think borders on being weird.  I can do without rhapsody in the Supreme Court, but am disturbed by oddity in that institution.  Both rhapsody and oddity are of concern, as the appearance of either of them in a legal opinion is a sign that the opinion's author has departed from legal analysis and strayed into the Never-Never Land of the zealot.  But oddity is of particular concern when it comes to the consideration of legal rights.

The dissenters are in a difficult position because it cannot be doubted that the ability to marry has been recognized as a legal right protected by the Constitution since at least 1962.  So in order to dissent, they must necessarily maintain that legal right is not available to certain people who are as much protected by the Constitution as any other American citizen.  Normally, such rights are available to all subject to forfeiture, generally by virtue of conviction of a criminal act.  However, it can't be maintained that gay people seeking to marry have all been convicted of a criminal act (no, sodomy doesn't count as criminal anymore under the Constitution).

The dissenters are thus reduced to contending, in effect, that the legal right to marry is a right that can be exercised only by particular people, but that others are excluded from exercising this legal right not because they have forfeited that right but because of a definition.  According to the dissenters, marriage is a legal right that can only be exercised by one man and one women because that is what the definition of "marriage" requires.

The dissent acknowledges that the definition of "marriage" may be changed, though.  The dissenters think, however, that the people through the legislature must change the definition, and not the court.  Thus we find in the dissent references to democracy and the will of the people which are unusual in a Supreme Court decision, as the Supreme Court has for many years disregarded the wishes of the people in upholding and interpreting the law when it deems it necessary to do so to uphold the Constitution, and this is indeed its function in our system.  The dissenters have all of them done just that themselves.  They simply abhor doing so in this case.

By acknowledging that the definition of "marriage" may be changed at all, however, and that if changed the legal right of marriage may be extended, the dissent creates problems for itself.  It makes the existence of a legal right dependent on something that may change, first, and this is something which the dissenters may find hard to stomach in other cases.  There is in addition a danger in letting the people, or the legislature, define what constitutes a legal right, as one hopes the dissenters recognize, even if that recognition would hint that they aren't being entirely impartial in this case.  The Founders were well aware of the potential for a tyranny of the majority, and took steps to avoid it; one of those steps was the creation of the Supreme Court.

There is also a danger in sanctioning the idea that it is possible to "define away" a legal right.  If one accepts that the Supreme Court must in all cases accept what a legislature mandates as a definition, it would be easy enough for a legislature to adopt definitions which would restrict existing legal rights or create new ones by adopting a particular definition. 

Perhaps it can be argued that in the case of "marriage" the dissenters refer to a definition of long standing, not dependent on legislative whim.  But the same could be said of "property" which until recently had been defined for many years as including certain human beings. 

Now there is talk of civil disobedience, and fears of restricting religious freedom.  There is even talk of the Supreme Court defying God's law by those who think of God as obsessed with human sexual relations (God as voyeur, as it were).  But the majority opinion makes it clear that should not be a concern.  This decision should properly be considered as applicable to marriage as a legal concept, which is in effect a contract or partnership.  Religions may consider it whatever they like, and require whatever rituals they think appropriate governing what they think is a marriage.  That should not be a concern of the law.  Similarly, it should not be a concern of religions what the State provides as governing this particular kind of contract or union.

I think it likely that we will not see the same kind of hysteria we saw in the days when the courts mandated segregation.  Acceptance of gay marriage has spread with remarkable celerity, and, frankly, those who oppose it and oppose modern society generally will die off soon enough, to be replaced with the less intolerant, or will withdraw from that society to live and die in relative isolation, for good or ill.

Perhaps the times really are a-changin', this time. 

Sunday, June 21, 2015

Habemus Papam Mirabilis

The Pontifex Maximus, a/k/a Pope Francis, is certainly a remarkable Vicar of Christ.  He continues to surprise me and no doubt continues to surprise and horrify, or perhaps delight, others.

I'm fond of his rejection of papal pomp and pretence (and of alliteration).  The creation of a commission to look into efforts of bishops to protect priests who molest children is encouraging as well.  That it took so long for the Church to take this step is sad but unsurprising.  That it took Francis some time to accomplish it is, I think, due more to the fact it likely took quite a bit of searching to find someone willing to sit on such a commission than hesitance on his part.

But in this post I'll address his encyclical on climate change, which astonishes even by virtue of the fact it addresses climate change at all.  This is not one of the traditional concerns of the Holy See.  But it may be that the Pope was serious in choosing his name, in which case he has a serious regard for the Earth and its creatures generally, in which case he may also feel that humanity is not the sole concern of the deity.

Such a view cannot but be welcomed by anyone who can no longer accept a God which for reasons it seems would be inexplicable is primarily if not exclusively focused on the conduct of a species which has its home on a tiny planet circling one unremarkable star among billions in a galaxy among billions.  The universe can only be considered a spectacular waste by those who think this and who consider God to be a creator, transcending the universe but in a way we can't understand, being unable to understand what anything beyond the universe would be.

It would seem, though, that a God concerned with the well being of the entire world would appeal to others whose conception of the divine is not entirely anthropomorphic.  I think that conceptions of God can be judged, and that certain conceptions are more reasonable than others.  One that is not exclusively anthropomorphic is I think of necessity more reasonable than one that is, given the magnitude of the universe.  Indeed, I think belief in an anthropomorphic God, or one that is primarily concerned with humanity, is delusional. 

It's stunning as well for a Pope to state that the view of humanity as holding dominion over the rest of nature and its creatures is in error, even if he ascribes that error to a misreading of scripture rather than acknowledging it as the self-regarding dream of a Bronze-Age tribe of primitives who didn't know any better.  But it would be too much to expect a Pope to abandon scripture at this stage in the development of institutional religion.

Even so, the encyclical is remarkable in that it seems to abjure, by implication, what has probably been the view of most Christians throughout the history of Christianity.  Europeans were infamously unconcerned with the world except as a source of comfort and profit, and this attitude must, in part, be credited to Christianity after the extermination of paganism.  Not only has Christianity, due to the misreading of scripture claimed by the Pope, fostered the belief that man is the master of the universe (as it were) next to God, it has also denigrated the world in worshipping a God who's kingdom is not of the world.  This was especially the case in the days when Christians expected the luridly conceived end of the world to be imminent (some, of course, still do).

Regrettably, the view of the world as inferior and insignificant (or unreal as Cardinal Newman put it) in comparison with the afterlife only seldom motivates the renunciation of it by saints and hermits.  For the rest of us, it contributes to its exploitation.  What does the world and its creatures matter, after all? 

Christians or those with a Christian view of the world are not its only despoilers, of course.  And  it must be admitted that there have been efforts in the Western world to curb our destructive tendencies.  But this represent the first time I'm aware of when a religious leader in the West has condemned those tendencies as part of religious teachings.    I think this is significant, and hope it has a significant effect.

Thursday, June 4, 2015

The Continuing Vulgarization of Conservatism

One of the many aspects of our times, and our country, which sadden me is the deterioration of a once reasonable political, social and cultural perspective--conservatism--into a contemptible, irrational, self-righteous, dull, bigoted, totalitarian and often preposterous ideology, worthy of Jonathan Swift's Yahoos or members of the Know-Nothing Party.

I say "reasonable" as opposed to, say, "admirable" because I think reasonableness is the best we can expect in matters involving politics (and perhaps in anything we humans do).  Even when it was respectable (which stopped being the case not all that long ago) conservatism had its share of loonies and stout defenders of the primitive and immoral.   The normally shrewd and thoughtful Edmund Burke, a great figure in conservatism, wrote, infamously, an extremely silly kind of Romantic rhapsody regarding Marie Antoinette in his work regarding the French Revolution.  John Calhoun, who seems to have had a sharp intellect, unfortunately devoted it to rigorously defending the institution of slavery.  But much the same may be said of liberalism and its devotees.

Conservatism once stood for limited government to facilitate the exercise of individual rights.  This position requires a commitment to laws which protect individuals from the limitation of rights arising from government power and authority, which in turn requires a commitment to the rule of law.  A commitment to the rule of law requires that the law be deemed to apply in all cases, subject only to reasonable exceptions, the purpose of which is not to restrict liberty but to foster it.

Conservatives in this country continue to pay lip-service to these ideals, but are ready and in some cases eager to disregard them.  That's because they take the position that they know what's best for everyone and the country, and seek to use the law and government power to impose what they know is best, whether other citizens agree that is the case or not.  It is, after all, for their own good or if not for their own good than it's for the good of anyone who matters.

This is of course reflective of the same kind of arrogance and totalitarian thinking conservatives once maintained were characteristic of liberals and liberalism.  This repressive stance may explain why many now prefer to identify themselves as libertarians or "independents" rather than conservatives.

An acquaintance of mine who is conservative recently responded to my complaints about conservatism by stating that the view that individuals should be free to do what they want provided they don't harm others was all very well and good when there was a consensus regarding what was appropriate conduct and thought, but that's no longer the case.  So, presumably, individuals should no longer be free to do and think what they like.  It's a telling statement, one that indicates that concerns with individual liberty are not all that concerning, to conservatives.  What is significant is conformity to certain standards.

As may be guessed, given the timing of this post, it was made in connection with the Jenner situation.  We Americans have always been unduly fascinated by sex, of course, as well as gender, or what may more properly be called how we perceive and broadcast our gender and that of others.  In this case we have someone who is or wants to be a woman seemingly eager to relate that to the world at large, thereby assuring an adverse reaction from those who are disturbed by it which has also been related to the world at large.  I care nothing about sex between, to use a cliche, consenting adults, and think it should not be of any concern to others, but think those who try to make it our business one way or another are wrong to do so.

In other words, I have no desire to hear of it.  It may be that Jenner has sought this publicity, in which case an adverse reaction should have been expected.  I assume yet another "reality show" will soon appear.  But the adverse reaction is nonetheless founded on a belief that something is permissible and other things impermissible, and this is a belief today's conservatives take with increasing frequency; worse yet, they seem inclined to use the law and government power to eradicate what they consider impermissible.

Conservatives seem particularly inclined at this time to adopt laws or interpret or apply laws in such a manner as to prevent, or limit, the conduct of those who don't think as they do, and to preclude even the presence of those different from them in the United States.  The U.S. is very much a product of the Enlightenment; it's Constitution is very much the product of Enlightenment thinkers.  Yet it is insisted it is a "Christian nation" which is to attribute a certain religion to the nation contrary to the Constitution and the writings of the Founding Fathers.  It is a nation of immigrants not only because its laws allowed immigration, but because it accorded to immigrants the same rights accorded to other citizens.  Conservatives seem less and less inclined to allow immigration and to allow others to seek let alone possess the benefits of citizenship.

Conservatives have begun to favor certain rights over others.  The fetishistic regard for the Second Amendment, uber alles as it were, is a symptom of this rejection of the rule of law, as is the growing tendency not to take a neutral stance as to religion but to favor religious beliefs and conduct (but only Christian in nature) in legal situations.  Zoning decisions are now subject to strict scrutiny if they involve religious uses.  The use of the law to provide for the teaching of religious beliefs in the form of creationism is another example of the new conservative urge to legislate in such a manner as to assure that what they think appropriate is taught.

In short, conservatism as a political and cultural force has become a threat to individual liberty.  Conservatives want us to be free to do as we please provided we do as they please.  They don't want us to do otherwise, and actively seek to prevent us from doing so. 

It's natural to wonder how far this perversion of traditional conservatism, which has its basis in classical liberalism, will go.  Ultimately, I think, what is now called conservatism has its basis in fear (and loathing, I suppose, as the late Hunter Thompson would day).  Fear of change, of most everything that is different.  It's likely that change will come regardless of efforts to prevent it from taking place, because to put it simply and frankly, people die.  It seems most who call themselves conservatives are older, and overwhelming white.  The demographics of this country are changing, and the older of us generally die before the younger do. 

Monday, May 25, 2015

Adhering to What is Real

"The imagination loses vitality as it ceases to adhere to what is real."  So said Wallace Stevens, a poet.  What is true for a poet, one would think, should be true for those of us who indulge in pontificating regarding what is real.

But if true it is ignored by many of those who advertise themselves as being in the business of reality, which is to say some of those we call intellectuals.   Especially, it seems to me, those who hold themselves out as such but seem in purporting to know what is "really" real make a point of not adhering to it.  This is because of their disregard of the ordinary, the everyday; the what, where, why and how in which we live, in favor of an imagined realm of their own creation.

Sadly for them, and for us as they live among us, albeit grudgingly, their imagination perforce lacks vitality, as Stevens noted.   This is due in part I think to the fact that their imagination is wholly academic, not merely in terms of its pertinence (given its disassociation from our lives) but in its source, i.e. the Academy.  That place seems less and less real itself.  The further away from it one gets, the less one even thinks of it.  Of course, I'm rather far away from it now.  But it seems in some way a part of one's childhood, which is a curious thought but strikes me as unsurprising. 

That particular thought brings on others.  Do those who devote their life to it prolong their childhood, after a fashion?  Probably not.  There is a difference between being a teacher and being a student, and it's difficult to think of teachers as children.  But it was questionable even in the far off days of my youth whether teaching is the goal of those in higher education, at least in the larger universities.   Research, and publishing, seemed even then to be of primary concern, though happily not in the smaller school I attended.

Even law school has little or nothing to do with the practice of law, I've found.  I suspect it's the same with medicine, and the other professions.  What accounts for this disconnection between our schooling, and school men and women, and our lives?

I think it results from the fact that other people and their problems, and their impact on us and our problems, are more of a concern in life than they are in school.  The school is a very simple, limited environment and is peculiarly focused on issues and concerns which are temporary for most of us and have little relation to life in the world.  

In life we encounter problems which are sometimes sources of desperation and despair.  They must be dealt with, one way or another.  They can't be made the subject of mere speculation; people and their demands cannot be dismissed in real life, or usefully pigeon-holed in such a manner as to render them of only a kind of literary interest.  They intrude on us constantly and can do so violently.   They can cause physical harm.  There is little opportunity for abstract contemplation, and little cause for theorizing, in the real.

So I think it regrettable that a distinction is drawn between the everyday and the "really" real or significant.   From that distinction we get such musings as--that's all well and good for ordinary life, but not profound enough otherwise.   We see this attitude sometimes among those very strange bedfellows who are willing to accept that science and reason provide the best guides for everyday life or knowledge, but otherwise insist that God, or cultural construction, provide the better way to understand what is truly the case.  The strange alliance of religious fundamentalists and academics in the denigration of reason and the fostering of the irrational has been noted before, of course, and cannot be said to be a new insight.  But I think there may be more involved than mere science-baiting.

Of greater concern is what I feel is an impulse to avoid the hard work of thinking about the problems we encounter in everyday life.  This impulse can be gratified by relying on God to solve our problems or thoughtless adherence to well known divine decrees, or by the comforting belief that no one way of addressing problems is necessarily better than another. 

There is something medieval, scholastic, about the disassociation from the everyday which  is disturbing in itself.  Far more disturbing, though,  is the attitude that everyday life is simply not worth thinking about, or that thinking is not required as God has and will provide.  We have so many problems, and it's at least possible they can be resolved intelligently if we were willing to recognize that everyday reality is the only reality we have, and that all else is a diversion at best, a delusion at worst.

Tuesday, May 19, 2015

Sweet Clarity

Clarity.  The quality or state of being clear.  Lucidity.  The quality of being easily understood.  From the Latin clarus; claritas.

This quality or state is generally considered desirable, and not just in communication.  It's believed fortunate for some of us to experience a moment of clarity or lucid interval.  In medicine, a lucid interval may be considered a period of time in which the patient is suddenly alert and responsive; in the law, someone demented may during a lucid interval have the capacity to sign documents such as a Will which are accorded legality despite the fact that they are often non compos mentis.

That's all it takes, really; one doesn't have to be knowledgeable or aware at all times.  It suffices to know what you're doing while doing the act which is significant in the law.  This is why it can be most difficult to establish someone was incompetent at the time a Will or other document is executed.  Someone must testify to that incapacity obtaining at that time.  Few are willing or even able to do that except where the incapacity is apparent and is observed at the time of execution of the document.

Surprisingly, (to me at least) it seems to be the case that clarity in language is not accepted as preferable, or worthy, or good in all cases, and that this is true in particular in the case of certain circles in philosophy.  Perhaps I should say that this is alleged to be true.  It is claimed, even, that certain philosophers practice obscurantism; i.e. they are deliberately ambiguous, they try to be incomprehensible.

I find this hard to believe.  I can't understand why a philosopher would want to incomprehensible.  The charge of obscurantism seems to come from those philosophers of the analytical tradition and is applied to those of the continental tradition, and this itself renders it suspect as far as I'm concerned.  Analytic philosophers are inclined to consider continental philosophy obscure by nature, I suppose.  But why would anyone want to be obscure?

It's difficult for me to imagine being against the clear, the lucid.  It strikes me as similar to worshipping a god who delights in or is intent on destroying the wisdom of the wise.  It makes no sense, unless there is a particular purpose in mind, and such a purpose would seem to me to be necessarily contrary to reason.  But proponents of the irrational would see this as desirable, no doubt. 

There's no denying that I find it very difficult to read continental philosophers.  I don't find them hard to read as I find Dewey hard to read.  I find Dewey hard to read because he writes badly.  It's difficult to read his work as a result, but I'm reasonably certain I know what he's saying (or trying to say) in most cases.  I don't think I know what continental philosophers are saying, or trying to say.  The words they use are often unfamiliar to me, as they are used, and they seem excessively inclined to metaphor.  This isn't necessarily to say they write badly, though.  Rather, they substitute metaphor for explication.

There's a danger is this method, though.  Metaphor may be essential in evoking certain thoughts and feelings, but to use language as needed to achieve evocation of this kind is a rare talent.  One sees it only in great poets, in my experience.  Philosophers are dreadful poets.  When they try to be poets or artists, I don't think they create great philosophy. They create bad art. 

It's quite possible to write obscurely without intending to do so.  To claim that philosophers deliberately try to be obscure seems to me the equivalent of claiming that they commit a fraud, and a claim of that kind shouldn't be made without evidence.

Obscurantism would be something engaged in by those who wish to limit or restrict knowledge to a certain group, already possessing that knowledge.  When knowledge is intended to be hidden from others, it may take on occult characteristics.  The knowledge becomes secret, a kind of gnosis open only to a few, the initiated.  Certain words or phrases are used which have meaning only to the initiates.

A difficulty arises, though, when complaints that writing is unclear are met by claims that it is unclear only to those unable or unwilling to comprehend, or that the meaning is so sophisticated that it cannot be expressed in everyday, ordinary language.  That kind of response implies that the meaning is open only to those capable of transcending language; those who no longer need to have meaning explained to them. 

From that point on, it becomes an open question whether obscurantism is at work.  Clarity simply is not something one would want to dispense with or avoid if there is a desire to communicate thoughts and ideas.  When it is dispensed with it must be presumed that it cannot be obtained, which suggests that there is nothing worthwhile to be communicated, or that it is undesirable, which suggests much the same.