Humanising law

By Lorenzo

One of the standard complaints against giving queers (by ‘queer’ I mean any person who does not conform to being definitively male-or-female and heterosexual: i.e. same-sex oriented, same-sex attracted, intersex, transgender people) equal protection of the law is that it is an offense against the Christian, or Judaeo-Christian (if Christians want to include Jews rather than practising more traditional exclusion thereof), traditions of the Western civilisation. To put it another way, it involves de-Christianisation of law.

Controlling women
This is true. But so did giving women equal protection of the law and giving Jews equal protection of the law. Giving women the right to exit a marriage, and to control their fertility, was equally an “offense” against the Christian traditions of Western civilisation. Indeed, if one examines the Christianisation of Roman law, and of proto-common law, one sees the same pattern. As Christianisation advances, women lose the right to control their fertility, they lose the right to exit a marriage. Being so completely untrusted as decision makers in such key areas of their life, the natural corollary was that they lost control over property as well; hence the development of coverture marriage and married woman as chattel of her husband. A free women in C8th England had far more legal standing, property rights and social opportunities than a free woman in C18th England and the reason for the difference was a thousand years of Christianisation of law.

As institutions and technology developed, and the ambit of religion as a source of meaning and explanation (and so authority) shrank, the legal status of women rose in a steady unravelling of the aforementioned Christianisation of law. They regained property rights, they regained the right to exit a marriage, they regained control over their fertility. (Such rights and control having been features of Celtic, Germanic and late Republic/early Empire Roman law.) Women became legally and socially recognised as full decision-makers, with dramatic expansion of their social opportunities.

That Islam, particularly in the Middle East, has not experienced the same shifts—institutional and technological changes being either outside impositions or grudging adjustments to outside pressure—and the ambit of religion as a source of meaning and explanation has (after a temporary period of retreat) resurged, explains the precarious status of women in such countries.

Oppressing Jews
The case of the Jews is, if anything, even clearer. Christianisation of Roman Law involved a steady process of stripping Jews of legal protections and imposing ever more legal constraints. (Pagans were even more severely treated.)

The Germanic conquests of the lands of the former Western Roman Empire was generally a benefit to the Jews, since persecution of belief was not a feature of Germanic law. Indeed, the Carolingian dynasty valued Jews as revenue-producing, law-abiding believers in God. The relentless hostility of the Catholic Church, however, led to the steady stripping of legal protections from Jews and the imposing of harsher and harsher legal constraints. (To their credit, both Karl-lo-magne and his son Louis the Pious resisted the Church’s demands that Jews be stripped of rights, but the collapse of Carolingian power removed that block.)

It was only with a process of de-Christianisation of law that Jews were able to enjoy full legal protections. By the middle of the C19th, places where a monopoly Catholic or Orthodox Christian Church had the most power (the Papal states, Tsarist Russia, Romania) were where oppression of Jews were most intense. During the C19th and early C20th, the Catholic Church put considerable resources into promoting Jew-hatred.

It has been a standard Catholic refrain over the last few centuries that liberal modernity is evil because it gives people rights. Liberal modernity is evil because it gives Jews equal standing in law; liberal modernity is evil because it gives women control over their fertility and the right to exit a marriage; liberal modernity is evil because it gives queers equal rights. The Catholic Church has been a strong proponent of the “insult of equality”— that it is an insult to decent, God-fearing Christians that Jews have the same rights as them, that women have control over their lives, that queers have equal rights. All this is even more intensely true in Islam.

Which leads to two questions: why is monotheism so hostile to equal protection of the law? Why has liberal modernity successively embraced equal protection of the law?

The answer to the first question is simple and has two parts. First, that it is based on a God-centred view (or, more accurately, particular theories-of-God-centred view). Second, that the easiest path to clerical or priestly power and authority is to offer and withhold God. Picking on some vulnerable group and selling effortless virtue (if you are Christian, male or heterosexual there is no effort involved in not being Jewish, female or queer) against them is a particularly easy way to do that. (So, the miracle is not that priests and clerics are enemies of queers, it is that some have chosen not to be.)

The answer to the second involves explaining why an increasingly human-centred view has become dominant. Why, in particular, there has been a humanisation of law; an adoption of an increasingly human-centred approach to law.

If you start with God, you don’t start with people
If authority comes from God, so the dynamics of belief in One God is at the heart of one’s conception of social order (including law), then how people actually are is not at the centre of conceptions of social order. On the contrary, how people should be to conform to the dynamics of belief in One God becomes the key question.

This puts in place the two key elements of moral (and so legal) exclusion: a theory that allows one to define who is, or is not, a “proper” person and a claim to authority that creates the massive sense of entitlement needed to both do so and act upon it. For one thing belief in the One God is very good at (and prone to) doing, is to create a massive sense of entitlement—something that the jihadis have been plaguing the world with for some time, to take a particularly murderous example.

Defining Jews and queers as not “proper” persons is straightforward enough. Jews were the Chosen People, the original followers of the One God who produced the prophetic tradition that both Christianity and Islam later appropriated. In failing to follow the Messiah they produced (Christ) or the Prophet who “completed” their tradition (Muhammad) they “betrayed” their God-given role; an act of betrayal, indeed treachery against God’s wishes, they continue every day they fail to embrace Christ (or the Prophet). Jews are betrayers of their “proper” role and so have demoted themselves outside the realm of moral decency. In the case of Islam, the notion that Jews have demoted themselves to being animals is in the Qur’an and the hadiths.

The irony is that this is a notion both Christians and Muslims got from Jewish scriptures. Deuteronomy 13 is, in fact, a much more vicious form of the above. It brings together defining people as not morally “proper” persons and a massive sense of entitlement—the right to completely strip people of any moral or legal protection because they have different beliefs to you; all done in the name of God, the ultimate authority.

Conversely, the Jews found being ruled by Zoroastrian Iranians a positive experience since the Zoroastrians had no angst about the Jews having their own prophetic tradition and no problems with Jewish veneration of One God.

The monotheist anathematisation of queers (which also occurs in Zoroastrianism) flows from natural dynamics of belief in One God. Unlike animism and paganism, in monotheism sexuality is not part of the divine. On the contrary, sexuality distracts and diverts us from the contemplation of the divine it has no role in—hence the very strong nudity taboos of monotheism. The only part of sexuality that connects us to the divine, to the Creator, is procreation; the creation of new life. Hence procreation is at the centre of monotheist conception of sexuality, leading to the anathematisation of those who engage in non-procreative sex. (This is complicated in Islam by its strongly male-entitled sense of ritual purity.)

The subordination of women is connected to the above. For a woman to frustrate procreation is to act against God. Moreover, God being conceived as thoroughly masculine, and only men being permitted to wield authority on His behalf, the association of women with sex makes give them an inherently problematic status. Especially as they have no role in religious debates or decisions. Indeed, justifying their exclusion from such itself involves deprecating their status as decision-makers.

All of which makes enforcement of strict gender roles vital. So, cross-dressing and being transgender are offenses against God’s purposes. While intersex people are just a frustrating anomaly who need to be driven to chose a particular gender role, because that is part of being “properly” human.

In other words, the God-centred view involves quite systematic assaults on people as they actually are.

Practising moral exclusion
It is important to understand just how devastating it is to be defined as not a “proper” person. If you are out of the realm of the “proper” your views, experience and perspective have no positive value, they do not count, they have no standing. The anathematisation of homosexuality, for example, has caused a great deal of completely unnecessary human misery. But this human misery has no standing, it does not count; it is morally invisible. The only issue is the “defiance” of moral righteousness. The excluded are trapped in a cage from which no escape is permitted except by agreeing with their captors. For the cage is never the issue, merely the “defiance”.

To be defined as an inherently inferior decision-maker is both worse and better. Better in that you are still part of the moral community, still covered by moral protections. It is worse in that one so easily becomes a co-conspirator in the web of condescension that constrains your life. Even to the extent of accepting it as the natural order and resenting people who raise uncomfortable issues by seeking to overturn it.

Either way, the practice of such moral exclusion teaches us to disregard the experience, perspectives and aspirations of others. Which is the other problem with such moral exclusion; it is contagious.

We can see this in the Mosaic two-step. The Jews decide that queers and apostates should be killed, as traitors to God. The Christians agree, and then say Jews should be repressed, as betrayers of God in the person of His Son. The Muslims agree, and then say Christians should be repressed, as betrayers of God, in the person of His Prophet—the Muslim notion of dhimmi just being an regularisation and extension of Christian treatment of Jews in the Christianised Roman Empire. The Mosaic two-step is a game that the Jews started, but have spent centuries losing.

For the trouble with the game of moral exclusion, is that anyone can play. We can see this happening in front of us as conservative Christians find themselves on the losing side of political correctness. But they are so morally blind that they cannot see that the moral and legal exclusions they are now running up against are just milder versions of the same moral and legal exclusions they so enthusiastically advocate, and seek to practice, against queers. But that is the other side of moral exclusion; if some group are created as a separate moral “species” so their views, experience and perspective have no positive value, they do not count, they have no standing then their experience has no warning value. They are so separated that one becomes completely blind to the reality that this is a game that can be played against you and yours. But if one engages in the practice of moral exclusion—and so teach folk to disregard the experience, perspectives and aspirations of others—then it does become a game anyone can play, for you have made sure the socio-psychological tools are already in use.

Purifying society
The most striking manifestation of putting the tools for exclusion into play is that the natural law reading of Genesis 19—that Sodom and Gomorrah were destroyed for practising boy-boy sex—justified the notion that slaughter can purify human society. More specifically, given the reality of human sexual diversity, that the extermination of a minority can purify human society. That this notion, which has become such a horrible feature of modern history, has impeccably Judaeo-Christian roots is something people are blind to, since queers are constructed as not “proper” people, as separate moral species, and so what happens to them has no implications for “real” people.

But, of course it does. The notion that killing some group purifies society is just the most intense version of moral exclusion. If one teaches the theology of Genesis 19 as being God’s wrath on people being “unnatural” then, giving the reality of human sexual diversity, one is re-iterating, again and again, the notion that society is purified by slaughter.

This reading of Genesis 19 is not one that fits with the rest of the Old Testament or Gospel references to Sodom and Gomorrah. Idolatry, oppression of the weak, vicious treatment of outsiders; these are the things which the cities of the plain are condemned for. Which fits in with both the wider concerns of the Torah and the Gospels and the actual story of Genesis 19; a threatened gang rape (against the messengers of God) and attempted gang rape (against Lot’s daughters). It takes a certain sort of mind to gloss over the issue of rape and focus on the form of sex; particularly the form of sex in the gang rape that is merely threatened, not the one actually attempted. A particularly intense manifestation of how a theory-of-God-centred view becomes a people-disregarding one.

But who was the most important figure in making the story of Sodom and Gomorrah being about the form of sex? Philo of Alexandria, who applied natural law reasoning to the story. The thing about natural law reasoning being you can be as restrictive as you need to be about the evidence, since contrary evidence is merely declared perverse, and so does not count. A technique of metaphysical exclusion that makes practising moral exclusion so much easier.

Saul of Tarsus, aka St Paul, is fairly clearly invoking elements of Philo’s writings in his use of para physin (against nature), particularly in Romans. (St Paul is the go-to guy for Christians who wish to practice moral exclusion, since the rest of the New Testament is unhelpful.) St John Chrysostom, the patron saint of preachers, took up Philo’s arguments, including his metaphors, agreeing emphatically that queers should be killed. Of course, he then applied this “betraying God’s purposes” reasoning against, of course, the Jews. The techniques of moral exclusion really are contagious.

But Philo’s notion that killing a minority purifies society (one he most emphatically meant to be applied to fellow Alexandrians, for example) was one that constantly came back to haunt Philo’s own people. The Catholic Church never advocated murder of Jews. They merely accused them of Deicide and taught the natural law theology of Genesis 19, that slaughter of a minority can purify society. Strangely enough, again and again, folk found it a short step from that to killing Jews.

All of which makes Jews the stupidest queer-haters, since not only are they so often the next on the list; they are typically on the same lists. It would be a nice symmetry if that also made queers the stupidest Jew-haters, but that is not quite true. There has been a long history of Jew-hating among educated queers, since they were well aware that it was the adoption of a Jewish religious taboo that so blighted their lives. (Still, queer Israel-haters are being pretty stupid; Israel is by far the most queer-friendly polity in the Middle East.)

About liberal modernity
Against this long and sad history, it is conspicuous that liberal modernity has been a process whereby the previously excluded find their views, perspectives and aspirations do come to count and that those previously deprecated as decision makers find the web of condescension being pierced and broken. How so?

The short answer is: science, Enlightenment and technology.

With the great European surge across and around the globe, Europeans became far more aware of both the diversity of cultures and creatures but also of the metaphysical consistency of the globe. (No Purgatory in the Southern Hemisphere.) Interacting with this was much greater capacity to measure and observe phenomena, both macro and micro.

The shock to medieval modes of thought was profound. Montaigne’s scepticism was the intellectual highpoint of C16th philosophy—otherwise a “dead zone” as the enormity of the challenge overwhelmed the resources of medieval philosophy. In the C17th, Sir Francis Bacon’s empiricism and Descartes’s rationalism kicked off the new philosophical obsession with epistemology. (The inadequacy of Scholastic Aristotelianism in the face of the shock of the new was nicely expressed by the Paduan philosophy professor who explained why Galileo had to be wrong about Jupiter having moons.)

Meanwhile, the Reformation both shattered the religious uniformity of what had been Latin Christendom and established very different concepts of authority.

This led to the C18th Enlightenment and the development of thoroughly secular modes of ethical thought and analysis. Once Christian conceptions had serious competition, any shift in the levers of social influence was likely to be a boon to previously excluded groups.

The surging capitalist economy and its concomitant technological advances, again and again, provided those levers. The Jews were first; if you treated them seriously as bankers, it was increasingly hard to justify not treating them as full citizens: especially as they were God-fearing family men.

Next were women. If they were participating in economic and intellectual life then how could they not possess property rights? And, if they had property rights, how could they not be voters? And, if they were voters, why could they not decide about their own marriages? And, if they could do all that, how could they not control their own fertility? As intellectual and social competition to Christianity increased, the ability of Christian precepts to block the logic of commerce and wider social participation steadily weakened and were eventually overwhelmed.

These were not the only civil rights movements, but they were the ones that directly confronted and defeated Christian precepts of moral and legal exclusion.

The queers have been the last group to move toward gaining equal protection of the laws. But they are inherently isolated—Jews grow up in Jewish families while women have female relatives (starting with a mother) but queers grow up in overwhelmingly straight families and social milieus. So they have been the most reliant on the development of cheaper and broader transport and communication. Cheaper transport encouraged mobility and urbanisation which allowed the creation of sufficiently dense social networks; a process taken further by cheaper communication.

Still, once they could organise and become visible, the logic of social participation and common humanity has increasingly overwhelmed Christian exclusion.

All this is much less true in Islam, not least because Islam is largely a science-free zone in which modernity is overwhelmingly a foreign intrusion. Islam retains a ruthlessness in dealing with challenges that Christianity has lost. It also asserts legal authority far beyond anything Christianity ever claimed and, unlike the case of Judaism, has not been constrained (and even humanised) by the pressures of permanent minority status. (The Ismailis are exception; but they have also been constrained by the pressures of permanent minority status.)

Humanising law
And every time you change (in practice expand) the concept of what is a full and legitimate manifestation of the human, you change the law. Either through statute or through what comes to seem reasonable and equitable. (Hence the evolution from Bowers v. Hardwick in 1986 to Lawrence v. Texas in 2003.) And the process of expanding equal protection of the law has been a process of making the law increasingly human-centred, increasingly based on how people actually are, and decreasingly centred on theories of God, thereby making law less a vehicle for prosecuting a particular set of wars against how people actually are—wars which blight lives and deform societies. The humanising of law is a thoroughly good thing.


  1. Mel
    Posted May 13, 2012 at 5:24 pm | Permalink

    I have had a look at Dover Beach’s Robert George link I must say I found the argument weak and uninteresting. What is immediately obvious is that the argument is entirely artificial and deliberately contrived so as to exclude the possibility of same sex marriage. The fascination with coitus is also morbid and would mean that certain marriages that are currently legal in Western jurisdictions would have to be annulled, for example a marriage involving a man with penile agenesis.

    Nonetheless, as previously stated I have no problem with Dover or anyone else subscribing to such a viewpoint on marriage. My problem is with the social engineers who want to enshrine their restrictive definitions into law, thus depriving their fellow citizens of liberty and the pursuit of happiness.

  2. kvd
    Posted May 13, 2012 at 7:14 pm | Permalink

    Kvd has raised the issue of the spread of Christianity outside of its traditional homebase, in places like Africa

    [email protected] I made no such comment about the spread of Christianity. What I quite simply [email protected] was that Christianity (along with all religions) was gaining adherents – a response to your earlier incorrect [email protected] that there has been a “decline of Christianity”.

    Further, please note that I did not express any opinion as to this being either a good or bad thing. This is important as you seem to somehow associate my simple correction with atrocities in Africa.

  3. kvd
    Posted May 13, 2012 at 7:16 pm | Permalink

    [email protected] in reply to me you say because it is a relationship involved with the generation, care and custody of children.. I have three questions:

    1) Re “the generation, care and custody of children”: do you accept that none of these features is in any sense uniquely the province of, or dependent upon, marriage?

    2) In highlighting those features over the joint and personal needs, wants and wishes of the actual married couple are you not devaluing the institution of marriage; reducing it to some sort of state-sanctioned breeding and child rearing co-operative?

    3) One of the authors – Professsor Robert George – wrote in The Wall Street Journal of August 4, 2009 But whatever one’s view, surely it is the people, not the courts, who should debate and decide. For reasons of both principle and prudence, the issue should be settled by democratic means. Are you similarly writing with good intent and willing to accept, and abide by, any (to your view) contrary outcome?

  4. Mel
    Posted May 13, 2012 at 7:32 pm | Permalink

    kvd, you blockhead, my reference to the decline of Christianity in @26 was in the context of its decline in the western world where it had previously been a dominant influence in social life. I made that comment in reference to your claim that I have liberties that do not exist in China or in proximity to Mecca. I think pretty well everybody knows that Christianity is spreading in the third world and that this more than compensates for the loss of numbers in the western world.

  5. kvd
    Posted May 13, 2012 at 7:40 pm | Permalink

    ‘night Mel. And as David Cameron thought he was saying LOL

  6. Posted May 14, 2012 at 12:11 am | Permalink

    [email protected] I left out generating because of adoption and stepchildren. Yes, there is a preference for children to be “spoken for” from the start, hence born in wedlock but that is clearly not crucial.

    I never said that is all marriage is, I said that was the only universal element they could find.

    The rest of your argument presumes a defining purpose; this is to be discovered, if it exists, not presumed. The evidence is that it doesn’t (or, if it does, it is not raising children; they play no part in marriage vows, for example).

  7. Paul
    Posted July 7, 2012 at 6:42 am | Permalink

    Am I supposed to love Israel just because its “queer friendly”?

  8. Posted July 7, 2012 at 9:07 am | Permalink

    [email protected] No, but it might be taken to be indicative of Israel having many desirable features as a polity that are absent from other Middle Eastern polities, to a greater or lesser degree.

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  1. […] be surprised if the culture shifts and suddenly the same moral exclusion is applied to you, as Lorenzo points out in his splendid piece. It’s a weaker version of the argument in favour of secular government: historically, […]

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