Saturday, March 19, 2011

Natural Concepts and Cultural Concepts

Kenji Yoshino, law professor at NYU, and author of Covering: The Hidden Assault on Our Civil Rights gave a Chautauqua Lecture at EKU. He discussed this idea of "covering" as a kind of discriminatory demand made against many people (in the workplace, the culture, etc.), not to be "too X," where the X is some feature of the person's own identity (such as, in Yoshino's case, his homosexuality). He did a nice job of taking the audience from his X to seeing how there are all sorts of features (from race, to one's identity as a mother, to one's love of, say, poetry) which can elicit unreasonable covering demands--sensibly stressing as well that not all discrimination is equal, and also speculating that we are nearing the point where challenges to fine-grained forms of discrimination will have to be "cultural" rather than legal (because the law is a meat cleaver and not a scalpel).

Enough introduction. Yoshino spoke at EKU in part as a balancing-act which brought Robert George to campus a couple weeks earlier. George is one of the more well-known opponents and voices of the anti-same-sex marriage camp, rooting his position in natural law. (I was unable to attend his talk, but apparently he did not address same-sex marriage, but talked more generally about natural law--apparently to the disappointment of many members of the audience.) However, the question of same-sex marriage, and of Yoshino's own critiques of George, did come up at the Q&A at Yoshino's talk. In particular, a professor at EKU who has been outspoken in his own opposition to same-sex marriage as well as to EKU's newly adopted policy which provides domestic partner benefits, challenged Yoshino to provide a definition of marriage.

Yoshino offered his sense of what marriage has come to mean in the culture, while criticizing (what he takes to be) George's idea that there is an essence of marriage, an ontology, which simply makes same-sex marriages not real marriages by definition. [Update: Rob suggests below that Yoshino mischaracterizes George's view and offers some corrective comments and links. Thanks, Rob!] I've always found this move fishy [Update: and whether it's the move George makes or not, something like an "argument from the natural definition" seems to crop up in discussions of this issue], and think now I can offer a conceptual distinction that makes clear why. Some concepts are "natural concepts"--they pick out natural kinds, like "dog" refers to dogs. We could choose to use the word "dog" to refer to things like cats, but in this case I think the use would then deviate from the natural concept. This is very quick, but the idea is that there is something like an essence to natural concepts, something like an essence of doginess, of doghood.

But some concepts are cultural. That is, they are the products of human culture, history, and institutions. Such concepts have practical purposes, but not essences in the way natural concepts do. I'm inclined to think that person is such a concept, and we can trace the history of the concept of a person to see ways in which it has expanded and contracted in various times and places. (E.g. not all humans have counted as persons, and not all persons have been humans.) Cultural concepts do not have an essence so much as a use and a history. Because of this cultural concepts are inherently malleable. It seems to me that the concept of marriage is clearly a cultural rather than a natural concept, because it plays a cultural and institutional role in human society. Opening marriage up to same-sex couples thus cannot conflict with the essence of marriage because there is no essence. It may conflict with the historical scope of marriage, but as with person, history and tradition is not an infallible guide to what future use we can make of cultural concepts, or whether an institution should be opened up to other groups with parallel (or identical) claims for inclusion to those who already have access to the institution. And it's clear that those who support same-sex marriage are not simply using the word marriage in a sense that is completely disconnected from its history. In light of this, resistance to same-sex marriage turns out to look like an insistence that the way things are and have been is the way they ought to be eternally. But if I'm right, that's a completely wrong-headed and insupportable approach because it attempts to construe marriage as the sort of concept it isn't.


  1. George’s lecture was very closely based on the “Natural Law” article we discussed in the Colloquium a few weeks ago, and Yoshino’s exchanges with George can be found in the link for the previous week’s discussion of “What is Marriage?”

    You’ll see, I think, that George isn’t making the mistake you are suggesting. I don’t fully fathom the Aristotelian “mystical union” stuff, but I think he and his co-authors are arguing that marriage has and should continue to “enshrine” the unique relation between a man and a woman, based, in their view, on a unique “dynamism” that obtains in the reproductive organs, regardless of whether they are exercised in the service of, or even capable of, reproduction. Despite my being firmly on Yoshino’s side of this debate as a public policy matter, and without having read his exchanges with George, I think Yoshino’s characterization of the argument during the Q&A was rather shallow. (Not that I entirely blame him. I rather doubt those who agree with its conclusion are much better equipped to grasp it.)

    For me, the glaring weakness in George’s account of natural law theory lies in his (admirably forthright) commitment to libertarian free will – when there’s a crystal-clear a priori argument for its impossibility (e.g. Galen Strawson’s Basic Argument) and tons of experimental evidence (Libet, Wegner, Wilson, etc.) stacked up against such brazen assertion of philosophical commitment to it. And as for marriage, I completely fail to see how an argument of the sophistication layed out in “What is Marriage?” has any serious relevance to the actual resolution of a public policy issue in a liberal democracy. British Columbia is currently dealing with a challenge to its polygamy ban. I don’t know if they’ve wheeled out any theologians or ethicists, but they have indeed brought forth folks with empirical, historical and anthrological data, such as evolutionary psychologists (e.g. Joseph Henrich), among whom there have even been disagreements, and social workers, etc. In other words, they aren’t treating the issue as one of by highfalutin philosophical theory of essences, which sharply contradicts the fear-mongering (“if there’s no essential definition of marriage, than what’s to stop marriage with animals and polygamy,etc.?”) that even George and his authors employ.

  2. This is pretty close to the lecture he gave here, though ours was a bit longer:

    It was, by far, the most intellectually demanding Chautauqua Lecture I've heard. Both discussions of the George articles have been for me quite illustrative of how Haidt's Social Intuitionist model of moral psychology applies to liberals no less than conservatives. ;>

  3. Many thanks for the clarifications, Rob. I hope my bracketed updates above make my post fairer to George. As I suggest, the "argument from definition" does seem to be out there, though it doesn't seem to have much of a leg to stand on.

    The British Columbia thing is interesting, and I found myself wondering at Yoshino's talk why he wasn't inclined just to bite the bullet with respect to the question one person asked about polygamy. But it may true that (legally, psychologically, etc.) polygamous arrangements seem to involve different complications. This is because, historically, so far as I can tell, polygamy does not have the same kind of symmetry of consent by all parties as our current ideal of a two-person union. But given what I said above, how polygamy (or polyandry) has been in the past doesn't fix what it could be in the future. Marriage hasn't always involved symmetrical consent either. But given the practical roles marriage has in our culture, and the particular benefits that come with it (e.g. benefits for spouses), polygamous and polyandrous unions would seem to raise questions about the fairness of extending such benefits.

  4. Something else I've wondered about is whether acceding to the model of the heterosex marriage is itself a kind of concession to a "covering" demand placed on LGBT's by the heterosex majority. I've read some people who've criticized the push for gay marriage on these grounds, suggesting that what really is needed is recognition of other kinds of relationships and family arrangements that are less like the "two lovers" model of marriage. On the other hand, such a critique probably isn't fair to same-sex couples who do have that special love for each other, see that there's an institution which recognizes such relationships (and gives them a special standing, etc.), and want access.

  5. I've been interested in the polygamy case, too, because of some of the disagreement [1,2] between the evolutionary psychologists involved (one of whom, Henrich, co-authored that cool WEIRD study [3], as well as an excellent presentation of dual inheritance theory in cog sci of religion [4], my candidate for the most promising quarter from which naturalistic 'explaining away' of 'religion' can be expected to develop most powerfully). You might also want to ask Mike Austin about George, as he was at the "What is Marriage?" discussion and his lecture (not sure about Yoshino's); and given his greater sympathy for libertarian free will and theism, probably has a richer take on natural law.


  6. Given that monogamy is apparently not as common among gay couples as among hetero or lesbian couples, it will be interesting to see if, under a regime in which marriage is extended to same-sex couples, infidelity rates among hetero spouses is affected. This is, obviously, one of the fears invoked by opponents of same-sex marriage.