« There's hope for legislatures yet | Main | Keyes to the Kingdom »

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.

TrackBack

TrackBack URL for this entry:
http://www.threeyearsofhell.com/cgi-user/mt/mtPleaseLinktoMe.cgi/663

Comments

"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.

Post a comment

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

Choose Stylesheet

What I'm Reading

cover
D.C. Noir

My city. But darker.
cover
A Clockwork Orange

About time I read this...


Shopping

Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'


Althouse
Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"


Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books


Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties


Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report


The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:


Crescat Sententia
Hillary II
Hillary
Politics and Principal/Agents


Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'


IrishLaw
Homecoming
Surveying the revival
Birds of paradise


Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...


pf.org
Progress
For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming


Ideoblog
Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?


The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?


Letters of Marque
Graduation
And there we are
Oil!


BuffaloWings&Vodka
Signing Off


Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....


Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys


Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?


Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay


the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
talisman
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year


The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

Syndicate This Site

Sitemeter

Technologies


Stop Spam Harvesters, Join Project Honey Pot