Thursday, March 25, 2004

Some philosophy
Be warned, if philosophy is not your thing, then stop now... Some time ago, I posted some comments endorsing the idea of gay marriage. One of the chief arguments advanced by people who disagreed with me was that allowing gays to marry would amount to a redefinition of the institution. This argument was made by Peter Cuthbertson in our exchange on the issue and also by a friend who asked me what marriage is -- what is entailed by the concept -- if not a certain tradition, a tradition that has always precluded same-sex unions. This, of course, is a rather philosophical point about the nature of concepts. And, originally, I tried to get around it by arguing that marriage had been redefined before (by allowing for inter-racial marriage and equal rights for women) without doing any apparent harm to the institution. Still, I was left with a nagging sense that I hadn't got to the bottom of the problem. What I really wanted to say is that the institution can be redefined without necessarily being undermined or fundamentally changed. But that sounded too much like a paradox.

Recently, as part of my research, I've been re-reading some material by one of my favourite legal philosophers, Ronald Dworkin, which I think holds the key to this issue (see Law's Empire in particular). Dworkin draws a distinction between two types of concept: those that are criterial and those that are interpretive. A concept is criterial if its meaning is exhausted by the rules for its use that are followed by members of our linguistic community. That sounds horribly abstract so let me try to clarify what I mean. Consider, for example, the concept "table." If I want to know what this concept means, the trick is to observe how other people use the term. The way that the majority of people apply the word "table" defines the concept. It would make no sense for me to adopt a minority position regarding what tables are. I couldn't argue that a tennis ball is a table, for instance. People would think that I was talking nonsense.

Dworkin's insight is that certain concepts, which he calls interpretive, seem to be different in that they allow for disagreement. One example is the concept of justice. It goes without saying that we frequently disagree about what is just and unjust, in a way that we don't disagree about what constitutes a table. With interpretive concepts, there's also no problem with holding minority positions -- positions that diverge from the linguistic rules followed by the majority of our community. One can, for example, consistently say that the death penalty or taxation or whatever are unjust despite the fact that a majority of people think otherwise. One can't do the same with tables.

Another example of an interpretive concept is courtesy. Our society has always recognised the concept of courtesy but it goes without saying that, over the years, the rules of courtesy have changed. For example, it was, for a long time, accepted practice that men should open doors for women. Now, at least some feminists object to this practice on the grounds that its sexist. An accepted rule has, in other words, been challenged. The fact that the challengers probably occupy a minority position doesn't matter. There's something about the concept of courtesy that allows for disagreement, that allows us to understand what they're saying, even if we're think they're wrong. Concepts such as "table" don't seem to allow for this.

So, what is this elusive element that distinguishes interpretive concepts from criterial concepts? For Dworkin, the key is that interpretive concepts are perceived as having a value, purpose, or point. The point of courtesy, he suggests, is respect. By agreeing on this, we are able to disagree about whether our current rules of courtesy adequately reflect that value. Some can, for example, argue that opening doors for women is an expression of respect. Others can take the view that this practice is the antithesis of respect. The rules for the use of the concept "courtesy" are, in other words, up for debate, in light of our understanding of the fundamental point or value of the institution.

Now, to get back to the original issue, it occurs to me that marriage is an interpretive concept. We shouldn't be debating whether we will "redefine" the institution by allowing gays to marry. We should, instead, be considering why, fundamentally, we have the institution, and whether the prohibition on gay marriage is consistent with that understanding. It my original post, I suggested that the following understanding of the fundamental point of marriage:

To my mind, marriage is, fundamentally, a loving partnership that is formally, and publicly, entered into, and which also has a range of legal consequences that facilitate a life-long relationship (such as qualifying for a spouse's passport).

This, I argued, doesn't preclude gay marriage; indeed, it shows us that our current restrictions on the institution are artificial, and that our rules for the use of the word "marriage" should be adjusted accordingly. Others, of course, might want to take the view that marriage is fundamentally about having children, which does preclude same-sex unions. But my point is that this is the debate that we should be having. We shouldn't try to forestall it at the outset by worrying about issues of redefinition. That misunderstands the type of concept that marriage is.

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