Publishing in the Yale Law Journal in 1997, Robert P. George, chairman of the National Organization for Marriage, explored the conflicts over some social issues and asked the question “Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?”
The Princeton professor and an influential conservative opinion maker spent nearly 17,000 words exploring the answer then summed up in a section titled “Civility, Reciprocity, and the Conflict of ‘Comprehensive Views.’”
It is possible, George concluded, “for citizens who differ fundamentally over certain basic moral questions to share a ‘deliberative’ conception of democracy that includes the mutually recognized obligations of citizens to treat those with whom they disagree with civility and respect.”
He cited “Democracy and Disagreement,” a 1996 book by Amy Gutmann and Dennis Thompson, as an example of those on the left who proposed a framework for tackling seemingly intractable issues.
“Their claim, rather, is that ‘reciprocity,’ which they consider to be deliberative democracy’s ‘first principle,’ demands that people recognize that others who come down on what they judge to be the wrong side of a disputed moral question may nevertheless be reasonable and honest people who deserve, therefore, to be reasoned with and treated with respect,” he wrote. But George equivocated.
“Yet reasoning with people and treating them with respect does not entail tolerating what one judges to be grave injustices so as not to offend those who judge otherwise,” he wrote. “Nor does it mean that one ought not to oppose injustices resolutely and forcefully in one's advocacy and action. Nor does it mean that one may not protest against injustices or even practice civil disobedience to prevent them. It does mean, however, that one has certain obligations to one's opponents, obligations that are not mere matters of politeness.”
That mildly ominous line had an endnote that read “For a succinct and, in my view, sound treatment of the morality of civil disobedience, see Finnis et al., supra note 46, at 354-57. On the vexed question of when violence may be used to combat injustices, see id. at 308-18.”
So it is a difficult question, but, in George’s view, apparently, violence can be used to fight injustices. But when?
The endnote referred to “Nuclear Deterrence, Morality and Realism,” a 1987 book by John Finnis, Joseph M. Boyle, Jr., and Germain Grisez. Like George, the authors are proponents of natural law theory, a 13th century philosophy that argues that moral truths can be discerned through reason and by observing man and the natural world.
As the title suggests the book is concerned with the moral questions that are raised by a central feature of nuclear war -- the idea of destructive weapons as implements that prevent violence. The pages that George cited wrestle with the inevitable killing of non-combatants, or “innocents,” that would result from a nuclear strike. Then there are some broader arguments.
“Justified social use of force is not limited to cases where those challenging just order are already attacking the lives of others,” Finnis and his co-authors wrote. “Also, as explained above, nothing in our moral theory limits the justifiable use of lethal force to cases in which human life is threatened. And so, just as a woman about to be raped can be justified in using lethal force against her assailant, so a society whose just order is about to be attacked by wrongdoers can be justified in using lethal force to defend itself.”
So when the “just order” of a society is threatened, that society can use force, even “lethal force,” to defend itself. In George’s world view, gay, lesbian, bisexual, and transgender people are not part of the “just order.” On the contrary, we threaten it.
George is a vocal opponent of same sex marriage. He has argued for criminalizing homosexuality. In 2002, he co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold a Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. George aided Colorado in its defense of Amendment 2, a 1992 law passed by voters in that state that barred any government entity there from enacting a regulation or law that banned discrimination based on sexual orientation. The US Supreme Court struck down Amendment 2 in 1996.
The American right wing has been saying for some time that they are subjected to discrimination, harassment, and even violence for expressing their views. In fact, it is lesbian, transgender, bisexual and gay Americans who endure violence, but that has not stopped conservatives from complaining publicly and in federal court cases that they are victims. Finnis and his co-authors have a comment on such a circumstance.
“Moreover, those who are mounting a serious challenge to just order and backing that challenge with the threat of force, even if they are not already threatening the lives of others, are almost certainly ready and willing to escalate their challenge to the point of killing,” they wrote. “Hence, if authorities reasonably judge that a particular challenge to just order cannot be met without using lethal force, its use will almost always be in defence of life as well as of other values included in and protected by just order.”
George did not respond to an email seeking an explanation.
Robert George responds:
In my opinion, there are no circumstances under which violence could be justified in any cause connected to sexual morality and marriage. It would be profoundly morally wrong for anyone on either side, or any side, to resort to violence (or the threat of violence or intimidation). Both sides, or all sides, are strictly morally obligated to use nonviolent means.
In a constitutional democratic polity such as ours, the currency of politics is reasoned argument. We all have the moral right to participate in the process and attempt to persuade our fellow citizens of the soundness or our views and the unsoundness of our opponents’ positions. Where people disagree about the requirements of justice and the common good, they should treat each other with respect even as they strongly argue for the positions they regard as true. I have no problem with the rough and tumble of democratic politics. Elections are not philosophy seminars. But I have a big problem with violence in any cause or for any political reason. I don’t mind politicians or political groups on all sides running aggressive and even negative ads or engaging in peaceful and respectful protests. That’s free speech, and it is protected by our Constitution. But violence and intimidation are different matters altogether, and have no legitimate place in our politics.
You asked when I believe violence can be justified to fight injustices. My answer is in line with traditional just war theory, except that I reject punitive war (which many traditional defenders of just war regarded as legitimate). (So I believe that war must be declared or launched by legitimate authority, be for defensive purposes, respect non-combatant immunity, etc.) I argued in a piece in the Wall Street Journal a few years ago that pre-emptive attacks against unjust aggressors who were themselves in the course of planning murderous attacks on others could legitimately be classified as defensive, and were therefore potentially justifiable. (I say “potentially” because any particular pre-emptive attack might be unjustified for other reasons. My point is only that one cannot infer from the fact that an attack is pre-emptive that it is something other than defensive. A pre-emptive attack might very well fail to qualify as defensive. But if such an attack fails to qualify as defensive, it is not necessarily because it is pre-emptive.) I realize that this position is controversial among just war theorists. Many believe that pre-emptive attacks by definition fail to qualify as defensive.
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