There exist times when arguments have winners and losers–well, winners in a practical or legal sense. Â This distinction is important, because the vanquished will continue, at least some of them, to resent the victors, to continue to believe in the righteousness of their cause, and so on. Â Take, for instance, the more recent of the Arizona Civil Rights issues: the attempt to forge a religious freedom law allowing businesses not to have to serve unclean women (isn’t that what they meant?). Speaking of the foolishness of such laws, George Will (half credit where due here), said the following on Fox News Sunday:
Chris Wallace: George, I think it’s fair to say that there are deeply felt positions on both sides of this debate. Religious freedom versus gay rights. We asked all of you for questions and we got this on Facebook from Dan Pletcher:
Dan Pletcher: With as many taxes as businesses have to pay, how does this government think they have any justification to tell a business who they will and won’t serve?
How, George, do you answer Dan? And more generally, how do you come down on this issue of religious freedom versus gay rights? George Will: Free exercise of religion against…a clash of rights and here is how I answer Dan. Fifty years ago this year, in one of surely the great legislative achievements in American history, we passed theÂ Public AccommodationsÂ section of theÂ Civil Rights ActÂ saying, “if you open your doors to business in the United States, you open it to everybody.” That’s a settled issue and the prestige of that law, the just prestige of that law obtains and I think that’s where the American people come down. That said, this too must be said: It’s a funny kind of sore winner in the gay rights movement that would say, “A photographer doesn’t want to photograph my wedding and I’ve got lots of other photographers I could go to, but I’m going to use the hammer of government to force them to do this.” It’s not neighborly and it’s not nice. The gay rights movement is winning. They should be, as I say, not sore winners. Chris Wallace: But having said that, and I understand your point, but you do say that if a gay couple wants to go into a bakery and have a wedding cake, the bakery should have to make the cake. Will: Bake the cake Wallace: Bake the cake.
The appeal to the victors is interesting and a little troubling. Â It’s also somewhat of a theme among conservative pundits (is there some kind of memo), for here’s Ross Douthat in the New York Times:
But itâ€™s still important for the winning side to recognize its power. We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, weâ€™re not having a negotiation. Instead, all thatâ€™s left is the timing of the final victory â€” and for the defeated to find out what settlement the victors will impose.
I’m unaware of any discussions of this topic in argumentation literature; in any case, as my Google search demonstrates, no one has used the phrase “jus post argumentum” before. Â So I wonder, I think there are rules for entering into arguments (just as there are rules for going to war), there obviously are rules for conduct in argument, hell, that’s what most of this stuff is about, so it seems, to pursue the just war argument a little further, there ought to be rules for when the argument is over. What would those be? Â Well, aside from treating non-combatants with compassion, which Douthat and Will justly appeal to,Â Â you’d think the victors have a right to demand certain conditions from the vanquished; they’ve earned that much by their victory. Â Beyond this, victories entail a certain settling of accounts, including the punishing of the aggressors, reparations, and so on. Â Not all arguments are just, after all, either in their declaration or in their prosecution. Â It only makes sense that the losers suffer the consequences.
24 thoughts on “jus post argumentum”
Hey John, A nice point, and it does bring up the issue of what the losers are due both in war and in argument. For sure, in war, there are post bellum requirements, and we’ve even begun asking whether the economic costs of making losers in unjust wars pay restitution is itself just. But this don’t be a sore winner line is insane — the issue is about equal rights, and so if the issue is equal treatment, it’s not being a sore winner to ask for them… demand them, when they are denied. And then to give it up so grudgingly — as if to say: Yeah, yeah… it’s immoral of me to deny you these rights, but you don’t have to make a big deal of it.
“Beyond this, victories entail a certain settling of accounts, including the punishing of the aggressors, reparations, and so on. ”
Please tell me you aren’t going down this road? Succumbing to the atavistic urge to punish people who disagree with you amounts to throwing in the towel on the social contract. In a liberal democracy we agree to resolve our disagreements through discussion, and voting; a far superior system to the alternative. For that system to work free speech has to exist, people need to know they won’t be punished for expressing unpopular opinions. The benefits of liberal democracy ought to be self-evident, but apparently some people would prefer that we settle our differences in the manner of Somalis or Syrians; yippee.
“But this donâ€™t be a sore winner line is insane â€” the issue is about equal rights, and so if the issue is equal treatment, itâ€™s not being a sore winner to ask for themâ€¦ demand them, when they are denied. ”
Oh come on.
The issue is not whether the bakery has to serve gays, but whether the bakery is required to endorse gay marriage by baking a weeding cake for a gay marriage. If the bakery put up a sign saying, “no gays allowed,” I’d agree with you, but that clearly is not what happened.
I’m not endorsing silencing anyone. I’m wondering what happens to the losers of arguments. I do this at the urging of the metaphor at play here. Here, in fact, is Douthat (a paragraph before the one cited):
You have to admit that it is not always a case of a reality-free exchange of ideas–people use arguments–sometimes superlatively specious ones–to endorse all sorts of bad things–such as depriving others of rights, life, etc.
On that other matter–the endorsement of gay marriage via cake production–you’re just wrong. Making a cake, as even George Will recognizes, does not entail endorsing gay marriage. If your business is wedding cakes, then refusing to make gay wedding cakes is refusing to serve gays.
I just finished reading Do-That’s column. Asking opponents of gay marriage to follow reasonable laws does not amount to punishing them for their beliefs, anymore than demanding that segregationists serve African American customers.
“On that other matterâ€“the endorsement of gay marriage via cake productionâ€“youâ€™re just wrong. Making a cake, as even George Will recognizes, does not entail endorsing gay marriage. If your business is wedding cakes, then refusing to make gay wedding cakes is refusing to serve gays.”
IIRC, former Georgia Governor Lester Maddox used to chase away African American customers with an ax-handle; the US Government was perfectly justified in requiring him to discontinue this practice. It would not, however, be reasonable to demand that he cater the NAACP banquet. The difference between refusing to serve gay’s, and refusing to serve gay weddings lies in the reason for refusal. The Baker is refusing to serve gay weddings because he disagrees with them, not because the customers are gay. After all, who says the customer coming in is the one getting married? Maybe the mother of the bride/groom is buying the cake.
“people use argumentsâ€“sometimes superlatively specious onesâ€“to endorse all sorts of bad thingsâ€“such as depriving others of rights, life, etc.”
For better or worse, if we want to have a liberal democracy, we can’t punish the losers of arguments, (even when the losers are morally repugnant scoundrels). There’s nothing wrong with demanding they follow reasonable laws, my only objection is to punitive laws.
Well, I’m not saying we should have punitive laws about speech.
I don’t get the other distinction: you have a catering business, you have to cater, even if you don’t like your customer.
“you have a catering business, you have to cater, even if you donâ€™t like your customer.”
So a Jewish caterer should have to cater an event held by David Duke? I think not.
Public accommodations are public accommodations.
Seems you’re confused about the point here of the post and my follow-up. Isn’t the “don’t be a sore winner” line a concession that the argument is lost and the loser’s asking to not have it rubbed in. All of your points are that the argument’s not lost. So “Oh come on” about the points that are relevant to where the conversation is.
Ben, a concession is in order, and worthy of a separate comment.
Your point about the behavior of those protesting the Proposition is well-taken, and it’s not the way anyone on any side of a rights issue in a liberal democracy should behave. Even if they are right. In this, we are in complete agreement — threatening business owners with violence over this is unworthy of the civilization these folks purport to represent.
“Public accommodations are public accommodations.”
I don’t think so. Businesses ought to have the right to refuse service as long as they aren’t doing it on a discriminatory basis. Being asked to bake a cake for a specific event, or to photograph it, makes you a participant in the event. For the record, people like David Duke often have trouble renting spaces to hold their meetings, because businesses don’t want to be associated with them. There are plenty of bakers, photographers, florists, who would be happy to participate in a gay wedding. What good are we seeking to achieve by further encroaching on freedom of association? I am unfamiliar with the proposed law in Arizona, but allowing businesses to opt out of events they disagree with seems reasonable.
“Seems youâ€™re confused about the point here of the post and my follow-up. Isnâ€™t the â€œdonâ€™t be a sore winnerâ€ line a concession that the argument is lost and the loserâ€™s asking to not have it rubbed in. All of your points are that the argumentâ€™s not lost. So â€œOh come onâ€ about the points that are relevant to where the conversation is.”
John Casey asked, “Beyond this, victories entail a certain settling of accounts, including the punishing of the aggressors, reparations, and so on…” It should be self evident that passing laws to punish political opponents means the end of liberal democracy. I think we can agree on that.
I got off on something of a tangent with the example of the baker refusing to bake a cake for a gay wedding. It seems reasonable that businesses have a right to decline to participate in events they disagree with. To use my example; David Duke demands that a Kosher Deli cater his big white supremacist gathering, and then tries to rent space at a Black Church for the gathering. I think these private institutions have a right to say no. Admittedly, this is an extreme case, but it proves that limits exist, and we can have a reasonable debate on where to set those limits.
The public accommodations business is a long-settled matter. Racists aren’t, however, a protected class. I suppose (sadly ignorant here) homosexuals are–or ought to be.
On the other matter, no one suggested laws restricting speech. We’d have as much luck with that as trying to enforce laws regarding the making of arguments in the first place.
Let me adjust this after a little googling: anti-gay discrimination in public accommodations is legal in a lot of states (such as Arizona). I think it should not be, for the same reason the others are protected classes.
“The public accommodations business is a long-settled matter.”
Well, the court got it wrong; legally, and morally. The bakery isn’t refusing the customer because they’re gay, but because of the nature of the event. As I said earlier, nobody hung out a sign saying no gays allowed; the baker refused to make a cake for a particular event; the case had nothing to do with discrimination.
“…others are protected classes”
But minorities, women, etc., are not actually protected classes under the law. The law outlaws discrimination on the basis of race/sex/etc. A business could refuse service to a black customer, they just couldn’t do it on the basis of race.
It wasn’t the court, in any case, but rather Congress: so they got it right legally, maybe not morally (according to you and a few others, like John Stossel and Rand Paul).
Let’s get the facts straight:
1. Title 2 of the civil rights act bans discrimination in public accommodations on the basis of race/religion/national origin.
2. Similar state laws cover discrimination against gays in some states.
How does refusing to bake cakes for gay weddings amount to denying someone a service because they’re gay? It makes no sense.
“It wasnâ€™t the court, in any case, but rather Congress: so they got it right legally, maybe not morally (according to you and a few others, like John Stossel and Rand Paul).”
That’s not a straw man for Pete’s sake. The Civil Rights Act (and associated state laws) are acts of legislatures, not courts, as you suggested. Your view seems to be similar to Paul’s and Stossel’s. That’s not an objection. That’s a comparison. I don’t particularly want to argue this point with you here (wasn’t the point, and, besides, seems like it will be a pointless endeavor).
I’m going to leave the cake-baking and public accommodation issue for you as a thought exercise, since we’re way beyond the point of the post (which you never really got anyway, but alas).
Yes we are off track, but you have significantly misinterpreted my argument. I never objected to laws barring discrimination on the basis of race/sexuality. The question never concerned discrimination, it concerned whether businesses are forced to participate in events they disagree with. As an aside the photographer in New Mexico is appealing the decision, and hopefully the supreme court has the wisdom to reverse the lower court. But this is off topic, apologies for side tracking.
Yes, Ben, I have understood your view correctly. I think the distinction you make is a silly one and tantamount to endorsing discrimination in public accommodations. But thankfully you recognize that it’s off topic. Thanks for participating.
“I think the distinction you make is a silly one and tantamount to endorsing discrimination in public accommodations.”
Well that cuts to the heart of the matter doesn’t it? People disagree over what counts as discrimination. Because they don’t agree with your definition of discrimination, they see rulings like the cake-ruling as punitive.
As for your original point what do the losers owe the winners of an argument? Well on occasion they might owe them an apology, but that should be a question of basic decency not the law.
I think I’ve made all the points I need to make here. Also, if you look back you’ll see that I didn’t say any of this ought to be a matter of law (for the nth time). On that score, I think Scott provided some helpful context.
Now that you’ve dragged the discussion far away from its original purpose, and because you’ve offered no helpful contribution to the original point, your non-legal punishment will be my kindly asking you to drop it.
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