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Ignoring Persuasive Authority

In a very interesting post at De Novo, PG writes regarding Amanda Strasser's eagerness to attend her sectarian law school. I'm sure she didn't mean the comment to have all the meaning I'm about to give it, but one of her phrases struck me:

However, apparently the only way to get an ethically-integrated legal education is to attend sectarian law schools. Unfortunately, I don't see the Bible -- or Torah, or Koran -- as a persuasive authority, so such schools will have little place for me.

(emphasis mine)

For the rising 1Ls who are reading this, a very rough differentiation between persuasive and binding authority. In our system, a holding in a case has binding authority if it is issued by a court superior to the court considering a case. For instance, most if not all of the rulings of the Supreme Court are binding upon all lower federal courts, and the rulings of the California Supreme Court will be binding upon lower California courts. (This is a bit rough and eliding over exceptions.)

But persuasive authority is much looser. A court may consider the decisions of just about any court to be persuasive authority. It merely feels that the decision of its fellow court to be wise, appropriate, or... well, persuasive.

Now, as I said, I suspect that PG was using persuasive authority in a purely poetic sense. Nevertheless, I sometimes wonder why some of the more militantly atheist or agnostic spend so little time actually considering religious thinking--why it doesn't count as 'persuasive authority.' (Not, incidentally, saying that PG is militantly agnostic.) After all, I share PG's agnosticism, but nevertheless spend a fair amount of time reading religious texts, or books about religion. (Indeed, my readers are probably sick of references to Chesterton, C.S. Lewis, or Dante.)

Even supposing one doesn't believe in a Supreme Being--or in the case of my particular brand of agnosticism, believe strongly that the existence of god is actually unknowable--these are books that say a lot about how societies organized themselves, and what some very, very insightful people thought about how humanity works, and how it should work. Take, for instance, one issue that PG raises, regarding Biblical Dispute Resolution, citing Matthew 18:15-17. Now, Biblical Dispute Resolution is a much bigger topic than the simple exegesis of three lines of biblical text, but boiling them down to their essence, they say: if you've got a problem, go talk it out with the person first; then if that doesn't work, go with a few fellow friends as witness, and talk again; and then finally, take the matter to the church. Only afterwards treat him as a heathen. (And actually, I have no idea what that last means: does it mean take him to court, or employ some extrajudicial remedy? Here my knowledge of history and scripture falls apart.)

It's not bad advice, in many ways. Whilst the comments section of PG's post immediately points out some flaws--it's not wise if you think the guy you're going to talk to is dangerous, violent, or otherwise vindictive--if you interpret it with a bit of common sense and not as an immutable instruction, it just puts forward a good basis for dealing with fellow citizens. Attempting to mediate, without invoking the law, in cases of dispute avoids not only stress upon the legal system, but a great deal of anxiety and negativity. A humble request for justice will often get one much more than well-written brief, especially since the first doesn't require paying a lawyer. As the scripture itself says, "if he shall hear thee, thou hast gained thy brother."

The comments section makes a few quibbles, mostly easily disposed of. How would this work between members of different faiths? (But of course, that's easily surmountable: in many situations individuals are willing to have disputes resolved by leaders of other faiths, if they feel said leaders are honest and impartial. Indeed, I can name you at least one priest and two rabbis I wouldn't mind sitting as arbiter for me.) How would it resolve the same-sex marriage dispute? (PG glides straight over the idea that perhaps this shouldn't be decided by our governmental courts, or the idea that this gets decided in legislatures.) No form of dispute resolution covers every style of case, nor does any completely avoid recourse to the courts. But none of these remove the main point: if one doesn't interpret Matthew 18 as an exhorted commandment, it's pretty good instructions for ethical and moral behavior.

None of which says that the Bible should be law. Law functions differently: for one thing, it's the prescription and proscription of the use of force by society against its constituent members. But take, for instance, the immortal McDonald's Coffee Debate which has spouted again over at the Clerk's. (It's even inspired it's own self-referential satire, amusing in itself.) Most of the argument boils down between the Clerk's very good description of the positive law--what product liability actually is--and others arguing differing normative positions as to what the law should be. Without taking sides in that heated debate, it's worth noting that moral authority from any number of religions might be invoked with persuasive normative force. Ditto for suits against tobacco or fast food companies. Whatever the law actually is, it doesn't exist in isolation, and its ethics shouldn't either.

Most of the attempts to do so--to invoke some kind of completely areligious moral order--betray a hostility towards religion that is both unwarranted and most often uninformed. After all, because I'm an agnostic and believe that the existence of God is unknowable, I have a great freedom. The entirety of religious thinking, the thoughts and beliefs of all of mankind's history, are laid out before me to learn from and incorporate. Certainly, I should look at them critically--some of the areligious forget that looking critically at one's faith is normally an obligation of that faith--but they're there to allow me to be persuaded. Avoiding that should not be an article of my own faith.


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"Most of the attempts to do so--to invoke some kind of completely areligious moral order--betray a hostility towards religion that is both unwarranted and most often uninformed." Anthony, which attempts are you thinking of in particular? It's been my experience that at least some of the allegedly areligious ethical systems are actually more friendly towards religion than might appear at first blush. (As usual, I'm thinking about Kant.) Regardless of that, while I would agree that hostitlity is certainly unwarranted, I would also say that if we are to do ethical theory, it's important to found our ethics on an areligious basis. In ethics, one of my deepest concerns is that goodness, or virtue, or whatever you want to call the object of ethics, should be accessible to all, across religious boundaries. And yes, I know you aren't disagreeing with that, but I'd be interested to hear your thoughts.

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