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Aug 15 2012

On ‘A Plea in Law for Equal Marriage’

Helen Dale won the 2012 Law Society of Scotland Essay Award for a piece entitled ‘A Plea in Law for Equal Marriage’. The Journal of the Law Society of Scotland has published that piece.

Helen explains at Skepticlawyer why she wrote the piece. It’s because the arguments in play were crap.

I suspect that this is why the arguments both groups used (and continue to use, alas) were very, very bad.

Now, I agreed with the LGBT ‘side’; that’s why I wrote the essay I did. But their arguments were crap. And the Catholic Church’s were similarly awful. Sometimes it really is a case of ‘play to your strengths’, lads (even when the batsman in question, like Kevin Pietersen, wants to belt everything on the leg side).

To that end, I wrote an empirical, positivist essay on the arguments for same-sex marriage. When I reference ‘human rights’, it is only incidental to my major focus: providing empirical proof and establishing formal validity for a proposed change in the law. At all times, I kept my eyes focussed on the human institution of the Scottish Parliament (‘it looks like someone swallowed a jigsaw,’ says one friend of mine ‘and then threw up on the Old Town’).

The virtue of making an empirical argument focussed on validity and ‘doability’ is that it allowed Peter Nicholson, The Journal’s splendid editor, to extract a natural law argument against equal marriage from John Deighan, the Parliamentary Officer for the Roman Catholic Church in Scotland.

This is the right way around, jurisprudentially, and both arguments are better for it. The Catholic natural lawyer draws on his tradition, bringing forth its contribution to human rights law and the notion of entrenched rights. The Skeptic legal positivist draws on her tradition, bringing forth its contribution to liberal parliamentary institutions and scientific rigour.

In the prize-winning essay Helen sets us straight on the history (as she has done here, enlighteningly).

It has become fashionable to argue that marriage in the past was always loveless, and a matter of arrangement and alliances, but that is just as historically illiterate as universalising the modern world’s focus on love and affection.

Although the assertion that Christianity invented marriage is ridiculous, it is worth addressing because it is sometimes allied to another falsity: that Christian Europe was the first truly monogamous civilisation. In fact, pagan Rome made monogamy a marital universal, with its great Empire imposing civilisational family values on conquered peoples in a manner to make the governors of British India blush.(7)

The difference, of course, is that classical Roman monogamy was strikingly modern, while the later Christian version (enacted, of course, by Roman Christians) was not. Classical Roman marriage law protected women’s property,(8) respected women’s autonomy,(9) did not impair married women’s capacity to contract, and allowed unilateral and consensual divorce to both men and women on equal terms.(10)

By contrast, Christian emperors constricted access to divorce, eventually banning it outright; severely impaired a married woman’s capacity not only to manage her property but also to leave the house without her husband’s permission, and – under Constantine – attempted to make (female) adultery a capital offence.(11)

Read the whole thing.

 

6 comments

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  1. 1
    F [i'm not here, i'm gone]

    Oh, very good. I will read the whole thing.

  2. 2
    Beauzeaux

    “It has become fashionable to argue that marriage in the past was always loveless,”

    Strawman alert.

    ALWAYS? Really? Could I have a citation for that claim?

    Sorry, but I stopped reading about then. Though I was already on guard from “I suspect that this is why the arguments both groups used (and continue to use, alas) were very, very bad.”

    Of course, both side do it? Why didn’t I know??

  3. 3
    OrangeDrake

    @Beauzeaux

    I’m pretty sure that was supposed to be an example of a bad argument, not the argument that this person is making. The whole essay was about both sides making rather poor arguments for their positions.

  4. 4
    sbh

    My reaction to this is the same as Beauzeaux’s above: who, exactly, is claiming “that marriage in the past was always loveless, and a matter of arrangement and alliance”? I’ve also never heard anybody argue that “Christianity invented marriage” or “Christian Europe was the first truly monogamous civilisation”. I’m not saying that such arguments aren’t being made, but they hardly have the currency that bad arguments on the other side (e.g. marriage in the past has always been between one man and one woman) have.

    While I didn’t stop reading at that point as Beauzeaux did, I definitely lost interest in reading the entire article. I read enough bad history as it is.

  5. 5
    skepticlawyer

    I suspect my blogpost has contributed to the confusion.

    1. The blogpost is about my reasons for writing the piece. It points out that both sides have made bad arguments, and makes a suggestion as to why: both are using jurisprudential arguments foreign to their intellectual tradition (ultimately, this is a dispute about law, not history; sorry, historians). I am a lawyer. Skepticlawyer is a law blog. While we try to be as clear as possible, inevitably non-lawyers will sometimes experience confusion. We do always try to explain ourselves, however.

    The blog post is here: http://skepticlawyer.com.au/2012/08/16/a-plea-in-law-for-equal-marriage/

    2. The essay (which won the prize) concerns equal marriage, and rebuts some of the more common arguments (from the very bad, like ‘Christianity invented marriage’ to the wrong, but in interesting ways, like ‘marriage has always been heterosexual and monogamous’). The Journal, of course, is a professional publication for and by Scots lawyers. It, too, will commonly make assumptions about prior knowledge, although its editor pushes people to write as clearly as possible.

    The essay is here:

    http://www.journalonline.co.uk/Magazine/57-8/1011507.aspx#.UCzgpBwu9Zd

    Apologies for the confusion.

  6. 6
    kagerato

    I read the essay and honestly didn’t find it especially enlightening. Certainly if I didn’t already agree with the conclusion, this facts-oriented approach would not have convinced me of it. We appear to have a very clear example of is-ought / fact-values confusion here.

    The history of marriage has nothing at all to do with what marriage should be like today. Why anyone would think that is a convincing way to approach the issue, regardless of the conclusion, is really beyond me. Yes, contradictory facts undermine an argument from tradition, but it’s really only demonstrating the extreme degrees of ignorance found in a certain selection of arguments. There is no plausible history of any human-like civilization over any significant period of time which would have had an unified concept of marriage with no reasonable deviations.

    Likewise, it’s a really awful idea to allow the topic of parent-child outcomes to be brought into a debate about marriage. Even supposing that the children of LGBT couples actually did suffer clearly inferior results uniformly, that still would not be sufficient to establish that such marriages should not be legal. We don’t screen heterosexual couples for all the factors we know affect the raising of children in order to optimize society’s results. We pay effectively zero attention of any kind to that before issuing marriage licenses, if we’re honest about it.

    As to the third point, it’s probably the worst of them all. First of all, slippery slopes are a logical fallacy. You’re not allowed to just declare that C leads to R without showing how it would do so. Any such argument ought to be rejected out of hand until the presenter does something to justify it. Second, harmful results from polygamy in practice don’t support the illegality of polygamy. You can’t oppose an institution on the mere demonstration of some degree of harm. Heterosexual monogamous marriage can be shown to cause relative harm (to women, to single people, etc) in the same sense, and yet we don’t make it illegal for that. This kind of Q creates bad results X,Y,Z argument is never sufficient. To justify it, you must first explain why the results are worse than the good created by Q. Further, this is a generally terrible argument because it doesn’t account for any variations in Q. It’s entirely plausible that the real cause of the harms in Q as observed have something to do with the society in which Q manifests, and are not a necessary result of Q intrinsically. It’s highly improbable that multiple marriage schemes would cause harm to women in a non-patriarchal society.

    I don’t know what/which bad arguments were supposed to be coming from supporters of marriage equality here, exactly. None of the ones covered are those that I have personally seen used. The worst I typically see is argument by assertion, which is extremely common and essentially unavoidable in any values debate. It’s not actually possible to “prove” your values, and introducing facts to support them doesn’t typically convince the opposition of anything. If someone doesn’t agree with your premises that “gays and lesbians are people”, “all people deserve the right to have meaningful relationships”, “marriage is a meaningful relationship”, and so forth … what are you really going to respond with? These are decisions about the kind of society we want to have, not facts.

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