Reasonable Disagreement

By skepticlawyer

As I was discussing with DEM the other day, I think Obama is a pretty well-read jurisprude, and that he’s actually trying to test a few theories in real time.

Rawls, Habermas and Hayek all wrote extensively on the limits to tolerance and ‘reasonable disagreement’. All three considered what we all must agree on in order to survive in a democratic polity, what we can ‘agree to disagree’ on, and what is simply intractable. The latter, of course, is the hard bit — the bit that draws blood at the polls and divides the country — especially in the US where an imperial judiciary has power roughly equivalent to that of the House of Lords before passage of the 1911 Parliament Act.

Much of their scholarship focusses on respect and civility, and for Habermas in particular incivility will place interlocutors outside the magic conversation circle. Hayek — ever the empiricist and pragmatist — is a fan of putting (polite) gays and (polite) anti-gays (say) in a room with wine and canapes and making both groups’ ability to treat with those in high places contingent on hammering out a compromise.

Scholars like Cass Sunstein and Richard Thaler have picked this up, arguing (among other things) for a privatisation of marriage. You can still get a batch of boiler-plate default rules from the state if you want them, and you can get those terms whether you’re gay or straight. But you can’t make the local Mormon Church start celebrating gay marriages, either — and you can’t force people to call you ‘married’ (but you’ll have the relevant legal chops to make your bonding work).

That’s why Obama had both Rev Rick Warren and Bishop Gene Robinson praying at his inauguration, and why there’s been something of a dust-up because HBO somehow managed to ‘lose’ Robinson’s contribution (fortunately, the Daily Show has stepped into the breach). If Hayek and Habermas are right, both men will still disagree with each other, but it will now be much harder for them to be uncivil, and much easier for them to negotiate.

Their respective supporters, however, may have to endure a fair degree of confusion, as this cartoon illustrates:



  1. saint
    Posted January 23, 2009 at 3:55 pm | Permalink

    Rowan Williams is a well read ideologue too, much more well read than Obama (who after all is above his pay grade), and his kiteflying has ended in wholescale division. Now multiply that for the man holding the most powerful political position in the world.

    Sure sure, tell me how do you negotiate with a terrorist again?

  2. Posted January 23, 2009 at 6:41 pm | Permalink

    Yes, but Williams is drawing on theology, not politics. Of the three great law/economics scholars, only Habermas has dealt in theology — but in some detail. There are a series of superb dialogues in various scholarly journals between Habermas and John Finnis, the great Aquinan natural lawyer. This (on Finnis’ part, too) is very much about reaching a political compromise, or else watch one’s democratic polity descend into chaos.

    None of the three would even think of negotiating with a terrorist: indeed, much of the inspiration for Habermas’ work in particular was his perception that Continental Europe (and particularly his own country, Germany) had failed in the face of Nazism. Some of this failure he hangs on aspects of continental philosophy and the structure and practices of the civilian legal system; much of his work is an extended boxing match with the Nazi jurisprude Carl Schmitt, who thought that democracies were ineffectual talking shops and that all polities must inevitably divide into ‘enemy’ and ‘friend’.

  3. Posted January 24, 2009 at 1:21 am | Permalink

    Sure sure, tell me how do you negotiate with a terrorist again?

    Politely I think is the point.

    You’re also being a bit unfair to poor Rowan. The Church of England has been riven by division for over a hundred years. The Methodists started out as Anglicans before breaking away remember? The bells and smells end went into an outraged huff with the ordination of women before Williams was even in charge (I remember a beautiful piece of footage from outside the Synod with a cassocked preacher complaining about it being an act of “transvestitism” – which seemed a bit rich coming from a bloke in a dress) and now on Williams’ watch the Evangelicals are getting stroppy because he won’t exile teh gay? Well let them.

    If the Evangelicals (which tend to include the African churches) want to do a Methodist then let them. Anglicanism can and will survive I think because it has always defined itself by what it is not rather than by what it is.

    If Gene Robinson can send John Stewart into gales of laugher with an off the cuff comment, he’s the kind of leader you’d want in your church.

  4. Posted January 25, 2009 at 9:11 pm | Permalink

    The divisions among religious groups on this (and other) issues is a powerful argument in favour of getting the state out of marriage, but it does involve two rather large concessions, one from each side.

    The first is a recognition of what amounts to a type of theological property right: if churches don’t want to ordain gays or women, or have the former groups’s vows solemnized in their church, then that has to be respected. ‘Progressives’ of various stripes who find what other people believe offensive will just have to suck it up.

    Similarly, those who would legislate morality (and thereby impose a significant externality on the taxpayer by denying gay couples access to appropriate legal rules for couples generally, forcing gays to engage in expensive litigation in order to access pension plans or life insurance payouts) need to remember that making other people pay for their preferences is not very nice.

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  1. By Privatise marriage! on January 24, 2009 at 2:05 pm

    […] to Skepticlawyer for bringing it to my attention. This entry was posted in Uncategorized and tagged gay rights, […]

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