No, this is not about the recent rules changes in the NFL. But it does bring to mind a humorous story. Humorous to me, anyway.
Many years ago I stopped in the courtroom of Milwaukee Circuit Judge Leah Lampone to kill a few minutes watching a fellow associate (who shall remain nameless), lose an uncontested motion for default judgment. In other words, even though the defendant had been served with legal process by a deputy sheriff, had failed to answer in the permitted time, had also received notion of the motion for default judgment in the mail, and still failed to show up--the judge denied the motion. And, because I could report on what had happened, what might have remained a private irritant became a source of intra-firm teasing for months.
Of course, it's nonetheless much easier to win when the other party isn't present.
But what if the other party is present? And what if the other party has some at least plausible reasons why he or she should prevail. What can opposing counsel do? Well, making a better argument comes to mind but how about getting the court to exclude the very arguments that opposing counsel most fears? After all, merely showing up doesn't do much good if a party is silenced.
So far, at least, this sort of end-around due process doesn't work but how about in the broader, political sphere? In a modern, liberal state can the opponents of certain political points of view be forbidden to argue theirs because it mentions, oh, I don't know, God? The answer to that question, according to Omri Ben-Zvi in The Unavailability of Religious Arguments (download here).
Cribbing from his abstract:
Of course, occasionally Christians do offer divine commands as the sole reason for a particular moral/legal action but so do some utilitarians. In Ben-Zvi's world, however, a utilitarian-minded zealot gets a pass. Why? Because her conclusion may be correct even if her particular utilitarian calculus is wrong. But might not the same be said for the conclusion of the religious zealot? No, according to Ben-Zvi, because her conclusion falls with the inadmissibility of her DCM premise and that falls because contemporary liberalism in a religiously pluralistic political world cannot tolerate such an outside-the-political standard of judgment.
All of which is to conclude by way of a brief review that Ben-Zvi's argument is exceptionally weak, which isn't to say that it will prove to be unhelpful in what passes for political debate nowadays. Ben-Zvi's utilization of a straw man to raise and then dismiss one aspect of contemporary political discourse is certainly consistent with the interests of some parties to those debates. And, notwithstanding my associate's loss in court years ago, silencing your opponent is almost always one step toward victory.
* For an explanation of why DCM is a-typical for Christian moral arguments you can read my blog post here. If you don't believe me channeling Nicholas Wolterstorff, then perhaps Ben-Zvi should read just about any natural law account of moral (and political and legal) judgment written before the late twentieth century. Or, one might listen to Oliver O'Donovan's lecture at Baylor University here. Or read about Richard Hooker's sophisticated understanding of the nature and relationship of biblical revelation and natural reason in Bradford Littlejohn's "The Peril and Promise of Christian Liberty" (2017).
Many years ago I stopped in the courtroom of Milwaukee Circuit Judge Leah Lampone to kill a few minutes watching a fellow associate (who shall remain nameless), lose an uncontested motion for default judgment. In other words, even though the defendant had been served with legal process by a deputy sheriff, had failed to answer in the permitted time, had also received notion of the motion for default judgment in the mail, and still failed to show up--the judge denied the motion. And, because I could report on what had happened, what might have remained a private irritant became a source of intra-firm teasing for months.
Of course, it's nonetheless much easier to win when the other party isn't present.
But what if the other party is present? And what if the other party has some at least plausible reasons why he or she should prevail. What can opposing counsel do? Well, making a better argument comes to mind but how about getting the court to exclude the very arguments that opposing counsel most fears? After all, merely showing up doesn't do much good if a party is silenced.
So far, at least, this sort of end-around due process doesn't work but how about in the broader, political sphere? In a modern, liberal state can the opponents of certain political points of view be forbidden to argue theirs because it mentions, oh, I don't know, God? The answer to that question, according to Omri Ben-Zvi in The Unavailability of Religious Arguments (download here).
Cribbing from his abstract:
Religious arguments, i.e. normative arguments that rely on premises regarding God's commands, routinely figure in legal and public debates. For example, they recently played a public role in the debate on same-sex marriage that ensued after the Supreme Court's decision in Obergefell v. Hodges. ... I offer a novel rationale for excluding several prominent sub-groups of religious arguments from the public sphere, including from legal argumentation. ... I develop an account of religious arguments that draws on theories of practical reasoning. The Article argues that, appearances notwithstanding, many types of religious arguments do not provide standard, run-of-the-mill reasons for action in the same way that (for example) utilitarian or deontological arguments do.... The Article thus shifts attention away from political philosophy ... and focuses instead on practical reasoning theories. Analyzing religious arguments in this way shows that there is a fundamental tension between religious argumentation and the way we conduct practical and legal reasoning. This tension makes it hard to take religious arguments seriously qua arguments and consider them in a political or legal scenario. The upshot is that many religious arguments are revealed to be internally incoherent, and therefore unavailable to participants in legal and policy discussions.A brief observation. Ben-Zvi takes it to be necessarily true that religious arguments partake of "Divine-Command Morality" (DCM) such that that "God's commands both constitute and exhaust our reasons for action, and settle our practical dilemmas completely." Is Ben-Zvi's characterization of Christian religious arguments correct? In a word, no. For most of Western history, divine commands did not exhaust reasons for action.* Heck, even in the Bible divine commands regularly fail to exhaust reasons for action. Take a look at all the "practical" reasons for obedience given in connection with many commands in Torah, not to mention Proverbs and psalms like 19.
Of course, occasionally Christians do offer divine commands as the sole reason for a particular moral/legal action but so do some utilitarians. In Ben-Zvi's world, however, a utilitarian-minded zealot gets a pass. Why? Because her conclusion may be correct even if her particular utilitarian calculus is wrong. But might not the same be said for the conclusion of the religious zealot? No, according to Ben-Zvi, because her conclusion falls with the inadmissibility of her DCM premise and that falls because contemporary liberalism in a religiously pluralistic political world cannot tolerate such an outside-the-political standard of judgment.
All of which is to conclude by way of a brief review that Ben-Zvi's argument is exceptionally weak, which isn't to say that it will prove to be unhelpful in what passes for political debate nowadays. Ben-Zvi's utilization of a straw man to raise and then dismiss one aspect of contemporary political discourse is certainly consistent with the interests of some parties to those debates. And, notwithstanding my associate's loss in court years ago, silencing your opponent is almost always one step toward victory.
* For an explanation of why DCM is a-typical for Christian moral arguments you can read my blog post here. If you don't believe me channeling Nicholas Wolterstorff, then perhaps Ben-Zvi should read just about any natural law account of moral (and political and legal) judgment written before the late twentieth century. Or, one might listen to Oliver O'Donovan's lecture at Baylor University here. Or read about Richard Hooker's sophisticated understanding of the nature and relationship of biblical revelation and natural reason in Bradford Littlejohn's "The Peril and Promise of Christian Liberty" (2017).
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