Jaime:

One can refuse, and no one ever said otherwise. There is an imposed condition that results from not agreeing, but no one has taken away your right to refuse the law.

The “imposed condition” being what, exactly?

If it’s something like what is done to undocumented immigrants today (arrest, confinement, and exile), then I should like to know by what right you think that you (or some third party) can impose this condition on me. You seem to want to treat this as if it were a matter of a contractual quid pro quo — I either agree or don’t agree to attend your class, and in return you agree to give me something that I want. But the peaceful enjoyment of my own life, liberty, and property are not goods in your possession that you can legitimately agree or decline to turn over to me. They are things that you owe me whenever and wherever we happen to interact (just as I owe you the same respect for your rights), prior to any agreements, contracts, covenants, or pledges we may or may not have made. I never agreed to take the class you propose forcing me to take, and I never agreed to accept anything from you that you made (or had any right to make) conditional on taking it. So what right would you have to make me take it, or to use any force against me as retribution for refusing to take it?

If it’s some other penalty that you have in mind, one not involving the use of force against my person or my property, then maybe you could clarify what you mean to do to people who refuse to attend the class.

Jaime:

There is no such thing as true freedom. At least while living, anyway (in the philosophical sense, then, true freedom is a condition without any laws which act on you, including those of mortal or immortal demesne). Otherwise, civic “freedom” is anarchy …

Well, I’m an anarchist. So merely pointing out that a view leads to “anarchy,” or to the end of law as such, is hardly going to dissuade me from it.

However, you and I may have different ideas about what “true freedom” means. I don’t think that political freedom is primarily defined by the absence of law. I think it’s defined by the absence of coercion. Since government law is systematized coercion, that entails the absence of government law down the road, but that’s a secondary consequence, not the definition.

Because this nation is a nation of (essentially) free people, there are restrictions where acts would infringe on the rights of others, and as such there is [potential] criminal liability attached to virtually all acts that would concern another person or property in this country.

I have nothing against using force to restrict people from violating others’ rights (there is a right to self-defense, and there is a right to defend innocent third parties from aggression). What I’m suggesting is that forcing people to take a civics class against their will is itself a violation of the rights of the person you’re forcing to take it. Playing hooky from a civics class victimizes precisely nobody, violates nobody’s rights, treads on nobody’s property. Thus there can be no justification whatsoever for having government use coercive means to make people take it when they do not want to. If you do advocate that, then you advocate violating people’s rights in the name of evangelizing your political program.

If you want to become a member of this nation, you must abide by the rights of all that dwell therein.

Fair enough. What I’m asking is that you abide by my right not to be forced to attend a civics class that I don’t care to attend.

Kuznicki:

4. Make everyone take civics lessons. No exceptions. Preserving our freedom first of all means knowing what freedom really is.

You’re going to teach people what freedom really is by having the government force everyone to take a civics class against their will?

Why not teach by example, and abolish coercive schooling?

Are you still a minarchist? If so, I suggest that you provide the best argument you can in defense of anarchism.

Also, Sandefur should be nonviolently compelled to give an argument against the decision to deploy federal troops against the Confederacy.

Here’s a repost of the remarks I put on the original post in reply:

DSH,

I can’t say that I’m convinced by your philosophical overview.

1. First, the is-ought problem, the fact-value distinction, and the naturalistic fallacy. You refer to all of these topics as if they were three different ways of speaking of the same thing. In fact they’re not: they are three distinct topics. Moore, for one, would be very surprised to hear that he endorses the fact-value distinction; in fact he takes for granted that there are objective moral facts and characterizes ethics as a theoretical science aiming at giving true general propositions about the things that are good and the nature of goodness as such (PE 1-5). For a painstaking argument, see Chapter III and Chapter IV of Moore’s sequel Ethics (1912), on “The Objectivity of Moral Judgments.” Importantly, you should note that Moore would object just as much to those non-cognitivists who analyzed “X is good” as merely expressing an attitude towards X rather than making a factual assertion; since the analysis into other concepts such as “commendation” treads on the conceptual simplicity that he thinks “good” has, and the claim that judgments of good assert nothing is explicitly denied in PE 13.

Moore defined the ‘naturalistic fallacy’ (at PE 10) as the fallacy of attempting to offer a definition of “good” in terms of simpler concepts (Moore held the term, when used in the sense of intrinsic value, to be a simple term that does not admit of further conceptual analysis). When using the term in diagnosing other philosophers arguments, he typically uses it to identify confusions between a synthetic statement claiming that everything that is good has some other non-moral property (which needs to be defended by argument or intuition), with an analytic statement claiming that “good” just means having that other non-moral property (which supposedly needs no further defense). Cf. PE 10: “But far too many philosophers have thought that when they named those other properties they were actually defining good; that these properties, in fact, were simply not ‘other,’ but absolutely and entirely the same with goodness. This view I propose to call the ‘naturalistic fallacy’ and of it I shall now endeavour to dispose”; cf. also PE 6. Moore, of course, refuses to call the property of goodness “natural” but he does not deny that it is a matter of objective fact, or that statements to the effect of “X is good” can be judged objectively true or false. His complaint is against reductionist theories of ethics, which attempt to analyze “good” as just meaning some complex of non-moral properties.

The is-ought problem, as classically set out by David Hume, doesn’t have to do with definition at all, but rather with entailment; Hume claims it to be impossible to derive “ought” sentences from “is” sentences without an auxiliary premise using “ought.” The idea here is that ought-statements aren’t entailed by is-statements alone (the issue is not analyticity vs. syntheticity, but rather whether or not you can make the inference of the ought-statement from the is-statement apriori without any further premises). Now, Hume took this to point towards a genuine and unbridgeable gap between facts and values; but not every philosopher who recognizes the problem feels the same way. One such philosopher was Aristotle, who both believed all of ethics to be founded in natural facts and also wrote the first known expression of the “is-ought” problem in the philosophical literature, at NE 1144a.

I mention this not only as an exegetical and historical point, but also as a critical one. There’s a big difference between (1) arguing against the reducibility of good to any non-moral property, (2) arguing against the validity of any argument with entirely non-normative premises and a normative conclusion, and (3) arguing against the notion that there is any such thing as a moral fact. I think that the reasons that you offer above, aside from the appeals to philosophical authority, support at the very most (1) and perhaps (2); they don’t support (3) (and while Hume thought they did, Moore rightly denied it). This is a matter of some importance, because Aristotelian moral philosophy actually accepts the reality and importance of irreducibly moral or normative facts; the idea that there is some further (metaphysical? supernatural?) fact that undergirds and explains goodness is a Platonic, not an Aristotelian doctrine. But the idea that the factuality or objectivity of goodness is undermined by not having some further fact beyond the moral fact to undergird and explain it, is merely to flip over the Platonic coin. Aristotle (like Moore) rejects the idea that you have to choose between propping up objective goodness with further facts, or giving it up as a myth.

I think that this is rather important, actually, to understanding the status of the “natural law,” as Aristotelians understand it: as a free-standing natural fact that can be true and be recognized in its own right (a fact, or set of facts, about the way we ought to treat one another), not something that you derive from empirical observations of nature or by appeal to your mystical observation of the Forms.

1. Wittgenstein and essences. You claim straightforwardly “The notion of essences has largely been abandoned ever since Wittgenstein alighted onto ‘family resemblances.’” I take it you’re referring to Philosophical Investigations 67. But Wittgenstein doesn’t take the lesson of 67 to be “there aren’t any essences” or even “there aren’t any words that admit of strictly limited general definitions.” He thinks there are lots of words that do, and that any word can in the right conversational context (cf. PI 68). There are language-games for which the old account of linguistic simples and complexes defined in terms of them are “really valid” (cf. PI 48); it is just that there are other language games where it doesn’t help us understand what’s going on.

I don’t know who you mean when you say that the notion of essences has largely been abandoned. Certainly there are lots of philosophers who don’t put much stock in the notion, but there are lots of others who do; it’s an issue of some debate in metaphysics and philosophy of language both. One of the most notorious essentialists in contemporary philosophy (Kripke; cf. Naming and Necessity) happens to be deeply influenced by Wittgenstein in particular. Most of the anti-essentialists, in Analytic philosophy at least, are not influenced mainly by Wittgenstein, but rather by Quine or by Rorty.

1. Aristotelian teleology. It’s certainly true that Galileo and Newton helped put the kibosh on the old Aristotelian system of natural ends and final causes as an explanatory framework in physics. And the long shadow that their reputation has cast has tended to make natural ends and final causes seem shabby and disreputable in any natural science. But it’s not at all clear to me that this is the way it needs to be or ought to be. There’s no reason to believe that the methods and explanatory framework that works best for physics and chemistry will also work best for all the other sciences; and in fact I think that really rubbing out teleological notions would simply mean the death of natural history and biology at large as sciences. See Michael Thompson’s The Representation of Life for a good extended discussion, or my post The ends in the world as we know it for a brief and partial discussion of one of the central issues.

Again, this is a matter of some import, which certainly deserves more argument than you’ve given it here (that is to say, it needs at least some argument…) because if teleological notions play an important role in our understanding of the “forms of life” in the natural world, then they give us an important point of reference for what sort of facts the facts of natural law — if there are any — might be.

The point here is not to suggest that you are wrong about the natural law. I happen to think that you are, but I haven’t argued it here. What I do think is that you have not supported your case nearly as strongly as you’ve presented it. The specific points you urge against the notion of natural law are not the uniform consensus of contemporary philosophy or scientific method and they need considerably more argument and attention to detail than the historical overview you’ve tried to give here.

Jonathan,

One thing that might help clear up some of the difficulties that you’re concerned with here is a clear differentiation between different things that “natural law” might be taken to mean. The way that the term is used by those who want “natural law” reasoning to be an important part of political or legal norms is substantially different from some sort of idea that “whatever is natural, in the appropriate sense, is licit, and whatever is unnatural, in the appropriate sense, is illicit.” Natural law is first and foremost a theory of the source and limits of rightful political authority; the idea is specifically that there is a natural law, prior to and independent of any statutory law, that can be discovered by the natural light of reason, that provides the basis for all legitimate authority and that dissolves all illegitimate claims to authority. (This is how you get the idea that a statute in violation of natural law is thereby null and void; if nobody can claim legitimate authority to do X, then any law that claims to do X cannot possibly be binding, any more than arbitrary commands that I happened to issue to my neighbors.) Call this the constitutional natural law.

Now, there are other senses of the word “natural law.” For example, “natural law” is sometimes used to refer to the universal or general empirical truths about nature, which we discover through observation and reasoning. But this is only “law” in an analogical sense, and thus competing claims such as “Homosexuality isn’t found anywhere in nature!” and “Homosexuality is found everywhere in nature!” have to do with “natural law” in the scientific sense, but not in the constitutional sense. Call this the scientific natural law.

Finally, claims about whether homosexuality or contraception violate or pervert the natural form of life that humans enjoy, and whether or not this entails that they are wrong, could be said to fall under a normative meaning of “natural law.” But they don’t fall under the strict constitutional meaning that I mentioned above; they have to do with what it may be right or wrong to do, not what you do or don’t have the right to claim authority to make people do. Call this the moral natural law.

So I’d suggest that folks who want to appeal to the moral natural law, but also want their appeals to have direct bearing on questions of what laws can be legitimately enforced (e.g. whether we should treat sodomy or contraception as a crime), are either just equivocating between the moral and constitutional senses of “natural law,” or else hiding a premise that moves from the claim about virtue and vice to a further claim about the legitimacy of a particular claim of authority.

It’s possible to mount an argument like this. For example, if you’re a particular kind of Catholic you might suggest that the use of contraception (for example) violates the natural law because it involves an attempt to usurp the rightful Lordship of God (and thus ought to be prohibited by statute). If someone offers an argument like this, then there are at least three possible responses: (1) you can deny that contraception attempts to usurp God’s authority; (2) you can deny, as a matter of natural law, that human rulers have the rightful authority to try to enforce God’s prerogatives on their fellow creatures; (3) you can deny that God exists, and thus that She has any authority to usurp. I’ll leave it up to the reader which, if any, is the best tack to take; the important point here is that rational conversation can continue; it doesn’t just devolve into bludgeoning each other with conflicting intuitions about the content of the natural law.

Incidentally, you mention that you don’t think the Declaration “can … be proven like 2+2=4.” I take it you mean the foundational claim that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. [etc.]” Maybe these claims and the following admit of proof, and maybe they do not; but Jefferson, at least, wouldn’t consider that a criticism. He states, after all, that they are self-evident, and thus suggests that they need no further proof, that they recommend themselves to sober reflection just as they are without prior argument.

Jason:

This reply surprised me, as I had understood you to favor a full privatization of marriage. If you do favor this option, then it seems you are forced to concede my point, and to admit that government acts at best to protect, never to create, a marriage.

Well, my position is that the concept of a marriage analytically includes recognition within a community; a purely private marriage is no marriage at all. But “private” and “community” can mean different things in different contexts, and “marriage” has at least two, and probably three distinct (though related) meanings: (1) a legal construct counting the spouses as under a single household in the eyes of the government, (2) a religious sacrament sanctifying a romantic and sexual union, and probably (3) some kind of more generalized form of union, recognized within civil society, that underlies (1) and (2). I think that marriage-1 ought to be abolished, marriage-2 is purely a matter for the churches (and has no meaning at all outside of the kinds of sanctifying rituals that churches are or aren’t doctrinally open to), and I don’t have very strong opinions about marriage-3, for a variety of reasons.

I would find this strategy [of striking “marriage” ought of the law books and punting the issue to case-by-case decisions in family court] both impractical and disingenuous. I want a set of rights and obligations that are basically identical to those of married heterosexual couples; as such, I feel I should be up-front and honest about this desire. I also mistrust a patchwork or piecemeal solution for two reasons: 1) Many of the most important rights — including immigration protection — will almost certainly never be obtained short of full civil marriage, and 2) A patchwork of rights and protections is both substantially less convenient for those seeking to obtain them — and substantially easier to revoke than an actual marriage. Notice how in Massachusetts, even those seeking to repeal same-sex marriage are not proposing to nullify the marriages that have already been contracted.

(1) Careful with the language here: if you think that gay marriage already exists even without government recognition, then you already do have a set of rights and obligations basically identical to those of married heterosexual couples; the government just fails to recognize the rights and obligations that you really do have. So what you want is for the government to respect your rights and recognize your obligations, not for you to get those rights and obligations.

(2) I don’t understand why you think that the strategy of punting the issue to case-by-case family law is disingenuous. I’m not proposing that gay marriage advocates conceal what they are about; what I am suggesting is appealing to people’s better natures, and their likelihood to understand the issue better when it’s a matter of understanding particular situations in real people’s lives than when it’s a matter of a cultural-religious turf war to be debated and legislated on. If folks tend to get it better at the level of particulars than at the level of universals, then dialectic should start with the particulars; but that’s a matter of seeking better understanding, not a matter of sidestepping understanding.

(3) I think that “many of the most important rights” discussed in these debates actually ought to have nothing to do with marriage at all in the first place. Exemptions from immigration restrictions are a chief example: the solution is an open border policy, not fiddling with marriage law. You might say that gay marriage has a better shot than open borders at political success in the near future. Fine, but so what? The best direction for political conversation isn’t always determined by the easiest option.

(4) I don’t know whether “a patchwork of rights and protections” is an apt phrase to describe what I’m advocating. What I’m advocating is a common law approach to the issue instead of the ex ante statutory approach that the entire contemporary debate over gay marriage presupposes. Part of the reason that I advocate that approach is practical: I think it will work better, will make it easier to make marginal gains rather than praying for the one decisive blow, and it will minimize the damage in cases where it fails. But part of it is also that I think that the current notion of “marriage,” as recognized in law, is itself a patchwork of a number of things that do not essentially belong together, and including a number of things that shouldn’t exist at all. It’s not that I’m advocating a patchwork; it’s that I think we already have an ugly, motley thing and I’m suggesting we unravel it.

Jason:

Indeed I am. If government did not exist, marriage still would exist. Marriage would still exist at least so long as two people promised one another (and their God(s) and communities) that they would care for one another no matter what, that they would help one another through good times and bad, and that they would forsake all others.

Fair enough; that’s not how I use the word “marriage,” but if that’s how you intend to use the term, and use it consistently that way, then you’ve probably got a linguistic right to it. However, it does seem that this complicates the argumentative ground between you and, for example, Rauch. I haven’t read Rauch’s book, but I have read previous articles, and from those and from the passage on political strategy that you cite, it seems pretty clear that he’s claiming that gay marriage is something that doesn’t yet exist in most of the United States, that ought to be brought into existence by means of democratic political processes. If that’s his conclusion, then he and you might just be using the word “marriage” in two different ways.

Just as a side note, do you take a vow to forsake all others to be essential to a marital relationship? If so, aren’t you defining (open) polygamy out of existence?

To the extent that certain third parties decline to recognize my marriage, they are thwarting my pursuit of happiness, and they are frustrating the very purpose for which I appointed them, and for which I pay their salaries.

I think this is a very romanticized picture of what government officials do and how they are selected and paid. I’m not sure you ought to hinge your case for the requirement on it. In any case, though, the point again is that this seems to complicate the question of where the debate between you and Rauch lies. It’s not that you disagree that third parties ought to be required to recognize the union, apparently; it’s that you disagree over which third parties ought to be required (or, better, in which roles third parties ought to be required) to recognize it.

In these senses, I think Nancy gets things just about right, particularly in the last paragraph. It would be a just and equitable solution for the government to offer civil union contracts to all, but it would not be a practical one. Shame that it isn’t, though, as the word marriage so often has such strongly religious overtones that it leads us into trouble.

My suspicion is that many people tend to react much more positively to legal recognition of family rights within queer relationships much better in particular cases than they do to the abstract question of “gay marriage;” for example, that even many overt bigots who spit fire at the notion of “gay marriage” would object to a court invalidating your will and giving all your effects to your sibling or third cousin or whatever rather than giving them to your spouse. (Similarly denying your spouse the right to act on your behalf in medical decisions.) So why not skip straight over civil unions, even, and simply eliminate “marriage” as a legally recognized category altogether, i.e., to simply devolve the legitimate issues you cite to family law, to be decided case-by-case. This has the advantage of shifting the fight to the terrain on which you’re strongest; it also has the advantage of offering a nice rhetorical strategy for both pro-SSM camp (“eliminate heterosexist privilege! put all families on an equal footing!”) and the anti-SSM camp (“take marriage out of the hands of the judicial activists! let the churches define marriage for themselves!”)

Jason:

We could very easily say that these gay people did own property, …

Right; because property has a well-defined meaning outside of the context of government recognition of property rights. (It’d have to, for libertarian claims such as “taxation is theft” to even be comprehensible.) Are you suggesting that, analogically, gay people are already getting married (thus that gay marriage already exists), and that the only political question remaining is whether government will recognize those already-existing marriages?

Jason:

This is the situation with marriage: It is an individual institution, made by, for, and about indviduals. And it should enjoy the protection of the government for exactly that reason, since government exists to protect the individual and to permit him the pursuit of happiness, free from the interference of others.

So your complaint is that certain third parties (viz. government officials) aren’t required to recognize gay marriages?

And even if I don’t have my family’s support — which, frankly, I do not — I’m still married. … Marriage may be a bond between two individuals, affirmed and supported by those the couple elicits for help, but it can’t possibly be — and should not be — with everyone.

If marriage is a chosen bond between individuals that doesn’t require the support or recognition of other people, then what’s keeping same-sex couples from getting married now? Nobody, as far as I know, is forcibly preventing gay couples from committing to each other ‘till death do they part, and holding a ceremony to formalize it where they say “I thee wed,” and describing themselves as “married,” “spouses,” etc. thereafter. So then what’s all the fuss about? Same-sex couples can already get married today, if that’s all that there is to it.

Wayne Besen: People will learn how destructive the closet is, not only for gays, but also on the people caught up in the sham families created to protect these closets.

I understand Besen’s temptation to put things this way, but it seems like there’s something importantly wrong here. The heterosexual families that closeted gay men and lesbians created were not “sham” families; they were real families made up of real people, and they suffered genuine pain when those families were betrayed. The tragedies here were tragic precisely because real families and real commitments were built on sham feelings.