There exist times when arguments have winners and losers–well, winners in a practical or legal sense. 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. 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 the Public Accommodations section of the Civil Rights Act 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. 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 it’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, we’re not having a negotiation. Instead, all that’s left is the timing of the final victory — 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. 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? Well, aside from treating non-combatants with compassion, which Douthat and Will justly appeal to, you’d think the victors have a right to demand certain conditions from the vanquished; they’ve earned that much by their victory. Beyond this, victories entail a certain settling of accounts, including the punishing of the aggressors, reparations, and so on. Not all arguments are just, after all, either in their declaration or in their prosecution. It only makes sense that the losers suffer the consequences.