Expert witnesses, gay rights and you can’t say that on the stand!

By skepticlawyer

Well well well, the stuff you learn.

Professor John Finnis is one of my teachers here. This term I have to front up for four hours of Finnis a week, so I’m becoming reasonably familiar with both his ideas and method. Granted, that’s sometimes by osmosis, but it’s good to be forced to confront ideas with which I disagree.

Finnis is a sharp and insightful thinker in the natural law tradition (sometimes disparagingly referred to as ‘natural law, or why you shouldn’t put a rubber on your willy’), devoutly Catholic, and what in political theory is described as a ‘political perfectionist’. Perfectionist thinkers – and not all are natural lawyers – argue that it’s legitimate for the state to dick with individual autonomy, to greater or lesser degrees.

By way of example, Joseph Raz (a positivist) thinks that autonomy can only be legitimately exercised among ‘valuable alternatives’. Unfortunately, he never tells you what those ‘valuable alternatives’ actually are. Raz is essentially a liberal, and I suspect his perfectionism comes about in large part because he doesn’t like inequality, but doesn’t really know what to do about it. He wants everyone to have lots of (good) choices, by gum, and he’ll do violence to liberalism in order to bring that about. His liberalism shows in his reluctance to prescribe. Finnis has no such fears. He’s happy to adumbrate what he thinks constitutes ‘the common good’, and, well, yeah. If that’s got the classical liberals among you out there ever so slightly freaked out, good – that’s kinda my point.

Finnis’ view of morality, US anti-discrimination law, the legitimacy of preventing private property owners from discriminating on their land and the – shock, horror – vital question of whether Plato and Aristotle were homophobes or not all came to a head in Romer v Evans, better known as ‘the Colorado Gay Rights Case’. Colorado, you see, had enacted an anti-anti-discrimination law, one designed to detach gays from the protective embrace of the 14th Amendment. The wiki entry (which I’ve linked) gives an interesting but ultimately very abbreviated account of the suit. The really fascinating stuff took place in the courts below, where Finnis was an expert witness (although, curiously, he wasn’t cross-examined).

For a range of odd but not improbable reasons, Romer finished up turning on whether homosexuality was condemned in Classical Greece, particularly by the likes of Plato and Aristotle. This piece from Lingua Franca describes the process neatly:

Because some of the legal strategies pursued by both sides depended on testimony offered by classical scholars, natural law theorists, and specialists in ancient philosophy, the case became a lightning rod for discussion about the relevance of the humanities to ‘real’ life – and, by implication, about the motives and methods of public intellectuals. Not all of this discussion was especially respectful of the life of the mind. There were those – among them writers at The New Republic and The New Yorker – who found something comic in the sight of academic superstars earnestly debating Plato’s views on anal intercourse in a Denver, Colorado, courtroom a good 2,300 years after Plato himself presumably rejoined the realm of pure Ideas.

So, a beautiful court-ordered ‘battle of the experts’, then. As much as anything, the case exposed the very different way that classicists (a type of historian), philosophers and lawyers look at the same set of texts. Classicists use ancient texts to tell them about the society in question; their concerns are empirical and specific. Aristotle in particular is mined for all the fascinating asides he provides about other Greek city-states and their forms of government (mainly in the Politics, but elsewhere as well). Philosophers (of the natural law/Thomist variety at least) are far more universalizing, seeking – at least sometimes – to apply ancient philosophy to the modern world. Add lawyers to the mix – people who just want to know what the Hell each word means, and you’ve got a mix more explosive than dynamite.

The plaintiffs hired an eminent classicist (Professor Martha Nussbaum). She argued that the Greeks approved of homosexuality. The defendants had both Finnis and one of his leading students, Robert George. Both argued that the Greeks disapproved and – more importantly – that such disapproval was legitimate even now. Of course, no one was really right – or really wrong – and the case dissolved into a Passchendaele of legal mud and blood. Finnis and George accused Nussbaum of perjury over her translation of a single word (and thereby hangs a tale, well-told in a couple of places). Nussbaum argued that “prior to the Christian tradition there is no evidence that natural-law theories regarded same-sex erotic attachments as immoral, ‘unnatural,’ or improper. Hence any natural-law theory that condemns gay or lesbian sexual conduct and relationships as a violation of natural law or the natural human good… is inherently theological.”

As you’d expect, the Supreme Court killed the law, and reserved some bitter comments for the Colorado legislature, which it accused of holding a ‘peculiar animus towards homosexuals’.

There are still truckloads of articles floating around the academy (and probably the blogosphere as well). I’m not sure how many are available to people without access to legal databases, so I’ll direct you to this page of google results instead. There are contributions from all three antagonists, a couple of books, a thesis, you name it.

And perfectionism? Nasty, illiberal stuff. The more you dig, the more you see it’s all about telling people how to live their lives.


  1. Posted February 20, 2008 at 4:46 pm | Permalink

    Everytime I hear the word ‘holistic’ I reach for my gun.

    Holistic holistic holistic holistic holistic holistic holistic holistic holistic holistic holistic


    News at 6.

  2. Jason Soon
    Posted February 20, 2008 at 4:51 pm | Permalink

    perhaps I was reading too much into what John was trying to argue with Mark re that high culture/low culture thing. But I do tend to take Mark’s side on this – I despise the dichotomy. It treats unjustly various worthy art forms while valorising some pretty mediocre ones simply because of the prestige of being old.

  3. Posted February 20, 2008 at 5:05 pm | Permalink

    I despise the dichotomy. It treats unjustly various worthy art forms while valorising some pretty mediocre ones simply because of the prestige of being old.

    In the days when I was gripped by lunacy and contemplated doing a PhD my topic was going to be the high/low culture dichotomy and the process by which it transformed after the second World War.

    Got as far as my chapter on Monty Python and realized that if I rewrote it in actual English and brough it to market it’d make me more money and make more sense. Naturally I never got around to it.

    I think the dichotomy is an abstraction. There is some stuff that requires a bit of cultivation and disipline to appreciate but the distinction between modes of expression is not where it lies. Listening to The Mikado is akin to listening to Britney Spears, it’s light and frothy, listening to White Light, White Heat is not a light and frothy experience. But does that mean that Cole Porter and Oscar Wilde who could both be quite light and frothy are not ‘high culture’?

    The distinction worms its way even within the same artforms. Watch The Simpsons episode where Homer goes into space. He releases some potato chips into the cabin and starts to eat them. We all laugh at the buffoonery, some of us realize that the slow rotations of the sequence and Strauss’s music are a reference to 2001.

    The high/low culture thing is a model, like all models it oversimplifies a complex reality so you can apply various classifications and stuff to it. Like all models it has a limited application. In the humanities, model are arguably almost udeless as the subject matter is not best understood by quantitative means. You can’t prove Shakespeare was a great writer or even a good one.

    The snob aspect of high culture is simply that. It’s just a rarer form of boneheadedness. Like my punk friends at high school telling me I shouldn’t listen to Talking Heads cause they’d gotten too ‘commerical’. The classical music stiffos who stuck their noses up at Jazz in the early 20th century and the subsequent Jazz stiffos who did likewise to the rockers are pretty much the same.

  4. Posted February 20, 2008 at 5:25 pm | Permalink

    Taking Heads got better and better and better….commercialisation was a consequence.

  5. Posted February 20, 2008 at 5:35 pm | Permalink

    I reckon they peaked at Stop Making Sense myself. I liked what they did afterwards but that was the peak.

    Incidentally I don’t know if there any fans who’ve noticed but they’ve re-released the soundtrack to Stop Making Sense. This one has all the somgs and hasn’t been given the bland production makeover of the original.

    One beef. On ‘Girlfriend is Better’ Tina Weymouth plays mainly keyboard bass, but during the chorus she pops the most delicious bass guitar riff and its gone!!!!!

    Egad. Did David Byrne do this out of bitchiness? Blast his hide!

  6. John Greenfield
    Posted February 21, 2008 at 8:46 am | Permalink


    In fact, my very criticism to Mark last week was just how UNempirical his incoherent piece was.


    I read it and enjoyed it, especially as it largely draws on my own shtick! Let me tell where you can improve your thinking immensely for next time.

    1. You do not adequately establish that anybody thinks there is a superstrata of “elite” people with unique and exclusive access to high Culture. That is, we ask who says there is a “fabled elite” and of whom are they alleged to consist? To this extent, your argument does smell a bit as if you are chomping on straw. This is particularly compounded by your opening with a scene from the opera, where you draw attention to the “old money” crowd, but you do not give any hint that there were also non-elite or working class types burping, farting, scratching their balls, but equally appreciating and enjoying the performance. This leads one to ask if there is in fact a narrow range of cultural activities overwhelmingly indulged in by the great unwashed, but not be the opera-attending ‘old money” toffs.

    2. I have now read Goldthorpe and Chan’s article. it is bad social science research; really bad. I was particularly surprised they neither hypothesised, let alone tested multicollinearity between “social status” and “social class.” As I argued on the HV versus LS this correlation is huge.


    3. Your article does not highlight the KEY finding of Goldthorpe/Chan and that is while there might not be a small “cultural elite” who consume ONLY HC, the class of “omnivores” who consume the whole spectrum is overwhelmingly made up of “high status” people. the great unwashed are largely absent from HC. This thus negates your argument “In effect, there is only pop culture.” Wrong. There really are differences between High, Middle-brow, Low, and what I call Simian Culture. This point is not understood by Goldthorpe and Chan.

    4. HC is appreciated and enjoyed overwhelmingly (if not exclusively) by those raised in highly cultured and educated environments either through family or education. The same people or “class” are equally likely to indulge in all cultural strata as well.

    4. The lower down the class/education ladder one goes, the more restrictive their particpation in the full vertical cultural offering. Darts, the dogs, and NASCAR yes, opera, chamber music, and cocktail parties or even pub dinners exchanging quips from Milton, Nancy Mitford, J’amie King, Benny Hill, Homer, and riffs from Mozart, ah, no.

    I hope this helps

  7. John Greenfield
    Posted February 21, 2008 at 2:31 pm | Permalink

    The bitchslapping continues apace. 🙂

    And god save us all from a party at glen’s place!

  8. Jason Soon
    Posted February 21, 2008 at 2:45 pm | Permalink

    err so Bob Walker’s argument amounts to ‘Mick Jagger told me he doesnt think of his work as art therefore all popular culture is not art’?

    out of curiosity what are your musical achievements to qualify you to make such sweeping judgements as the ones you are making John?

  9. John Greenfield
    Posted February 21, 2008 at 4:14 pm | Permalink


    1. First of all, state what “sweeping judgements” you want me to defend;

    2. Explain the relationship between my “musical achievements” and the validity of alleged “sweeping judgements.”

  10. John Greenfield
    Posted February 21, 2008 at 4:37 pm | Permalink


    I am quite stunned at your defence of Mark, here. Not only is Mark quantitatively deaf, but he did not even read the article on which his whole argument is based.

  11. Posted February 21, 2008 at 5:05 pm | Permalink

    I wonder how Skpetic’s gonna feel when she returns from mind-bedning jurisprudence and discovers her thread has morphed into a parallel argument to the Bourdeuian gymnaistics at LP?

  12. John Greenfield
    Posted February 21, 2008 at 6:54 pm | Permalink


    Now, now, you’ve already been warned about mentioning the hive-mind outside its own Habermas-honed-honey producing hivemind! 😉

  13. Posted February 21, 2008 at 7:15 pm | Permalink

    What’s with the aliteration JG. You trying to be Clive James?

  14. John Greenfield
    Posted February 21, 2008 at 7:17 pm | Permalink


    No. Just more than half-way thru a six-pack of VB! 🙂

  15. John Greenfield
    Posted February 21, 2008 at 7:19 pm | Permalink


    Anyway dude, why have you been so hard on me!?

  16. Posted February 21, 2008 at 7:25 pm | Permalink

    He doesn’t like fucking opera!

    I wonder if Graeme likes opera.

    Is Graeme an opera?

    They should write an Opera: Bird: The Opera I shall write the libretto:

    Get fucked you fucking house nigger-wannabe son of Joachim of Fiore holocaust denying kkkkunt.


    I think “House Nigger Wannabe” will be the hit tune.

  17. C.L.
    Posted February 22, 2008 at 1:09 am | Permalink

    Perhaps of interest here – in a discussion largely beyond me, I confess – is the recent revivification of the Tridentine Mass (or Mass of John XXIII). Considered by some people to be one of the cultural treasures of the Western world, its language (Latin) as well as its historical, rubristic, literary, intellectual and other – even theatrical – hallmarks, might be considered, by these very facts, to be HC. And, to be sure, you do encounter – in my limited experience – decidedly bourgeois and educated people who are most dedicated to its revival (along with the Gregorian chant that is its natural cultural fellow traveller). When the old Mass was done away with, it was indeed a HC literary group that protested directly to Pope Paul VI. Here is their letter – an interestingly high-brow, even paternalistic, plea for a stay of execution:

    If some senseless decree were to order the total or partial destruction of basilicas or cathedrals, then obviously it would be the educated – whatever their personal beliefs – who would rise up in horror to oppose such a possibility. Now the fact is that basilicas and cathedrals were built so as to celebrate a rite which, until a few months ago, constituted a living tradition. We are referring to the Roman Catholic Mass. Yet, according to the latest information in Rome, there is a plan to obliterate that Mass by the end of the current year. One of the axioms of contemporary publicity, religious as well as secular, is that modern man in general, and intellectuals in particular, have become intolerant of all forms of tradition and are anxious to suppress them and put something else in their place. But, like many other affirmations of our publicity machines, this axiom is false. Today, as in times gone by, educated people are in the vanguard where recognition of the value of tradition in concerned, and are the first to raise the alarm when it is threatened. We are not at this moment considering the religious or spiritual experience of millions of individuals. The rite in question, in its magnificent Latin text, has also inspired a host of priceless achievements in the arts – not only mystical works, but works by poets, philosophers, musicians, architects, painters and sculptors in all countries and epochs. Thus, it belongs to universal culture as well as to churchmen and formal Christians. In the materialistic and technocratic civilisation that is increasingly threatening the life of mind and spirit in its original creative expression – the word – it seems particularly inhuman to deprive man of word-forms in one of their most grandiose manifestations. The signatories of this appeal, which is entirely ecumenical and non-political, have been drawn from every branch of modern culture in Europe and elsewhere. They wish to call to the attention of the Holy See, the appalling responsibility it would incur in the history of the human spirit were it to refuse to allow the Traditional Mass to survive, even though this survival took place side by side with other liturgical reforms.

    [Signatories: Harold Acton, Vladimir Ashkenazy, John Bayler, Lennox Berkeley, Maurice Bowra, Agatha Christie, Kenneth Clark, Nevill Coghill, Cyril Connolly, Colin Davis, Hugh Delargy, + Robert Exeter, Miles Fitzalan-Howard, Constantine Fitzgibbon, William Glock, Magdalen Gofflin, Robert Graves, Graham Greene, Ian Greenless, Joseph Grimond, Harman Grisewood, Colin Hardie, Rupert Hart-Davis, Barbara Hepworth, Auberon Herbert, John Jolliffe, David Jones, Osbert Lancaster, F.R. Leavis, Cecil Day Lewis, Compton Mackenzie, George Malcolm, Max Mallowan, Alfred Marnau, Yehudi Menuhin, Nancy Mitford, Raymond Mortimer, Malcolm Muggeridge, Iris Murdoch, John Murray, Sean O’Faolain, E.J. Oliver, Oxford and Asquith, William Plomer, Kathleen Raine, William Rees-Mogg, Ralph Richardson, + John Ripon, Charles Russell, Rivers Scott, Joan Sutherland, Philip Toynbee, Martin Turnell, Bernard Wall, Patrick Wall, E.I Watkin, R.C. Zaehner].

    That was 1971. Nowadays, nevertheless, some of the most conservative Catholics in the world are decidedly not tophat or educated and many of these are the most committed and enthusiastic Tridentinists of all. I’ve never attended (“heard”, as they used to say) Mass according to this rite, being an entirely post-Tridentine bambino. But I have started to wonder if Benedict XVI hasn’t really struck a resounding cultural chord with his re-introduction of the once Tridentine, now Johannine Mass. And this new liturgical movement seems to transcend class-associated tastes, whatever that might mean.

  18. C.L.
    Posted February 22, 2008 at 2:33 pm | Permalink

    #18 “narratology”

    These big word aficionados, sheesh.

  19. Posted February 22, 2008 at 2:46 pm | Permalink

    I really wonder what Skeptic’s gonna think when she comes back. It starts off as a piece on jurisprudence, takes a turn into Aristotle v Plato 360BCE, does the Foucault a go go, then we have to think about whether the Greeks were gay or just child molesters, did some of us mutate into homosexuals around the time The Wizard of Oz came out, does the opera suck worse than the Beatles, House Nigger Wannabe the musical and now the Latin Mass.

    What will we think of next?

    BTW CL I agree. The Latin Mass could do with a revival. Not everywhere but surely once a week in the major cathedrals. The rituals are, after all beautiful and in my opinion not the thing that turns modern people off Catholicism.

    That would be archaic prejudices against stuff like homosexuality and contraception.

    Sorry. Couldn’t help myself. 🙂

  20. John Greenfield
    Posted February 22, 2008 at 4:25 pm | Permalink


    I have no doubt her eyes with well with tears when she realises her contribution to “celebrating diversiy.” 😉

  21. Posted February 22, 2008 at 5:00 pm | Permalink

    John I dunno for sure but I suspect it would take a lot more than a wayward Catallxy thread to get her to cry.

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