Archive for the ‘Steve Hays’ Category

Distinguishing Reality from Fantasy

September 25, 2015

No matter how good of an argument for Departmentalism my exceedingly brilliant friend and brother, Steve Hays offers (here, for example), Departmentalism is a pipe dream. It’s not the way America actually works.

In practice, in America, the Supreme Court has a final say. Knowledgeable advocates of the position Steve Hays mentions continually rue this. For example, Ed Whelan, as quoted by Steve Hays in an earlier post, states: “We live in a legal culture besotted by the myth of judicial supremacy.” And again: “Although there are some scholars, both on the right and on the left, who challenge it, most lawyers across the ideological spectrum, having suffered the detriment of a modern legal miseducation, embrace it.” In other words, Whelan’s position is a minority position that reflects the way he thinks the system should be not the way the system actually is.

That said, I don’t think any of the arguments for Departmentalism are very compelling. For example, Whelan argues (quoted by Hays):

It is one thing for the Supreme Court to decline to apply a law that it deems to be unconstitutional; it is quite another for it to maintain that presidents, members of Congress, and state officials must likewise regard the law as unconstitutional and, further, must accept and follow the rationale of the Court’s decision.

Whelan is whiffing. There are at least three strikes there.

1) Although in some cases the Supreme Court decides whether something is unconstitutional as applied, the Supreme Court often decides whether something is unconstitutional on its face, and consequently void. Whelan tips his hat to this point, but doesn’t seem to realize its far-reaching implications.

2) Not all of the Court’s decisions relate to the Constitution. Sometimes the question requires interpreting a piece of legislation and deciding what the legislation means. We’ll come back to this issue shortly.

3) In America, no one has to “regard the law as unconstitutional” (in the sense of agreeing that the Court decided rightly) nor must they “accept and follow the rationale” that the Court offered. They are free to think the Court decided wrongly. However, even if they disagree with the ruling, they have to obey the ruling until it is overturned. That’s true whether it’s a really controversial Constitutional issue or a less controversial legislative issue. And that is how the system works. It’s easier to overturn decisions about the meaning of statutes and much harder to overturn interpretations of the constitution. But the same rule applies.

According to Whelan, the Court didn’t come up with judicial supremacy until 1958. That kind of claim runs face-first into a more complete history of the situation (see here, for example). Famous cases along the way include the Court striking down the original income tax law, leading to a Constitutional Amendment to overturn the court’s decision.

The most bizarre part of Whelan’s argument is this: “But none of this speaks with clarity or force to the judicial-supremacist claim that other governmental actors must abide by a federal judge’s view that a law is unconstitutional.” What would be the point of having a judiciary that no one had to obey? The idea that the Supreme Court’s decisions on constitutional matters are just advisory is just nuts. One doesn’t have to agree with the Court, but one does have to obey the Court.


Judicial Supremacy

September 22, 2015

In a number of great posts at Triablogue, Steve Hays has raised the question of the legitimacy of what he terms Judicial Supremacy. His question is not totally illegitimate, even though it in no way rebuts (in fact, it presupposes) my argument that Obergefell is law. So, let’s briefly consider the question of so-called Judicial Supremacy.

The US Constitution is a great document, but it has certain gaps that have been noticed over the last two centuries of use. One of those gaps is the question of whether the Supreme Court’s interpretation of the Constitution should be treated as better than the President’s interpretation of the Constitution or the Congress’s interpretation. When the branches of government disagree about what the Constitution means, who wins?

In practice, i.e. the way things are, the Supreme Court’s interpretation wins. That’s the way it has been, almost without interruption since the time of the founders. There are some rare situations that have challenged that status quo, such as when around 1832, President Jackson supposedly said “John Marshall has made his decision; now let him enforce it!” Nevertheless, if someone wants to know how the American system actually works, the answer is that the Supreme Court’s interpretation wins.

In theory, the answer is not quite so clear. After all, each branch swears allegiance to the Constitution. If the Supreme Court’s decision is not just wrong, but actually contrary to the U.S. Constitution, then the Congress should not make laws consistent with the Court’s decision and the President should not enforce either the Court’s decision or any other unconstitutional laws. In other words, each branch seems to have an independent duty to make sure that the Constitution is obeyed.

Of course, a lot of the controversial Supreme Court decisions don’t fall into that theoretical category where the President would have to choose between contradicting the Constitution and following the Court or contradicting the Court and following the Constitution. For example, while the recent Obergefell decision may not be an objectively correct interpretation of the Constitution, it’s much harder to argue that obeying the rule in Obergefell would violate some other part of the Constitution.

If one wished to argue that it does violate it, one would presumably rely on the “reservation of powers” clause or something like that, and suggest that obeying the Supreme Court would require usurping rights reserved to the states. On the other hand, that argument does not seem to have a lot of teeth. The real problem with Obergefell is its objective immorality and/or its objectively unreasonable interpretation of the Constitution.

It seems to be much less compelling that the President or Congress could simply disregard a Supreme Court decision because they don’t think it was justified, even if they don’t think it would violate the Constitution. After all, what if the Court did that? In other words, what if the Court didn’t say laws were unconstitutional, but simply refused to treat as valid laws it didn’t think were justified? That would seemingly potentially cause chaos.

Thus, in cases where there is not a clear inherent conflict between following the Court and following the Constitution, it seems that even on a theoretical level there is a legal (though not moral) obligation to follow the Court.

That’s still not actual Judicial Supremacy (just so-called supremacy) because – as I’ve previously pointed out – there are checks and balances against a runaway judiciary. One check is that judges can be removed. Another check is that Constitution can be amended. The former option can provide new judicial precedent that overrules prior precedent. The latter can simply directly overrule the precedent.

Steve’s biggest challenge to this was:

But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can “interpret” the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.

Steve’s argument here is wrong. What Steve should say is that if the Supreme Court were consistently given an incontrovertible prerogative, they could avoid impeachment and ignore Constitutional amendments. But the current American system does not give them that level of incontrovertible prerogative. The American system lacks that kind of consistency, and as a result does not have that absurd outcome.

Steve may want to argue that the American system would be better if some changes were made, or Steve may want to argue that the American system is inconsistent. Both of those may even be legitimate criticisms (not of me, but of the American system). But both of those arguments from Steve presuppose the point my original article made, one which my friends need to hear, namely that although Obergefell is a very bad law, in the American system it is law.

Bad Law is Still Law

September 21, 2015

Steve Hays has a thought-provoking post (link) sparked by my own previous post (link). Since his post doesn’t seem to directly dispute the central thesis of my own post, namely that Obergefell is law, no rebuttal is needed. In fact, I find a lot of points in Steve’s post with which I agree – or at least I think that there are issues worth considering.

For example, Steve wrote: “Whether executive agency regulations should have the force of law is hardly indisputable.” Whether they do have the force of law is different from whether they should have the force of law. In practice, they have a slightly different effect from legislative law, but they are (in general) still laws that people have to abide by. Whether this should or shouldn’t be the case is essentially academic.

Moreover, Steve’s point about executive agency regulations helps underscore the point of my original post. After all, while agency regulations may have disputable standing on some academic level, judicial precedent is not disputable.

Steve commented (regarding agency regulations): “To my knowledge, that’s not something the Founding Fathers envisioned.” Whether or not they did, they definitely envisioned judicial precedent as law.

Skipping over other interesting things Steve said, toward the conclusion of the post, Steve raises a question of whether there should be judicial supremacy. If the question here is founder’s intent, it’s worth noting that Judicial supremacy goes back to 1803 in which the Supreme Court first declared a law void based on the law being unconstitutional. That was in a case brought against President Madison, who was one of the founders. Once again, there is a sort of academic argument to be made that the final determination of constitutionality should lie in the Executive or Legislative branches, but in practice that’s not where the American system is today.

Today, even when the Supreme Court makes bad Constitutional decisions, its decisions stand as law until either they are overruled by subsequent Supreme Court decisions or the U.S. Constitution is amended. That’s how the system is, whether or not that’s how the system should be. I leave the should be question to the academics and the rich.

As a result, Christians should not go around making foolish claims that Obergefell isn’t law. They may oppose it, but they should recognize it for what it is.

Unlawful Orders and Options – Some Thoughts on Persecution

September 6, 2015

Steve Hays has already provided some excellent thoughts on the issue of unlawful orders over at Triablogue (link). In supplement of those thoughts, I wanted to add a couple of additional semi-related points.

1) Distinguishing Permitted Disobedience from Required Disobedience

In some cases, when someone in authority over us commands us to do something, we are required by God’s law not to follow those orders. Often, there are two ways in which can “no follow orders.”

For example, if a judge ordered a clerk to issue a “gay marriage” certificate, the clerk has a moral obligation under God’s law not to follow that order, assuming following that order was sinful. However, there are at least two real alternatives this hypothetical clerk has. The clerk could simply refuse (i.e. disobey the order) or the clerk could resign (i.e. avoid the order). Both of these alternatives are legitimate.

Some people seem to think that a Christian’s duty to disobey also entails a duty to do so following the path of least resistance. In other words, some people seem to be arguing that our hypothetical clerk must resign, rather than simply disobeying orders. This view seems to suggest that disobedience can only be a last resort – we can only disobey when our back is to the wall, so to speak.

That rationale seems intuitively wrong. It seems as though the midwives in Egypt could have sought other career options instead of continuing to deliver babies, but their choice to continue delivering babies while disobeying orders seems praiseworthy.

There may be cases where we cannot resign our way out of direct disobedience. For example, I don’t think anyone believes that the apostles had the option of resigning their apostolic office in order to avoid directly disobeying the Sanhedrin.

On the other hand, that does not mean that direct disobedience is always mandatory. Remember that sometimes Christians are called to flee persecution. For example,

Matthew 10:23 But when they persecute you in this city, flee ye into another: for verily I say unto you, Ye shall not have gone over the cities of Israel, till the Son of man be come.

So, in our hypothetical example, the clerk is permitted to flee persecution, for example by simply resigning.

This is distinct from cases where we may not have any way of fleeing the persecution and disobedience is our only option, as with the Apostles in front of the Sanhedrin. Still, it is important to recognize the distinction and to permit Christians their liberty in Christ to elect between enduring persecution for the name of Christ and fleeing that persecution.

While enduring such persecution is noble and praiseworthy, it is not mandatory in every case. Therefore, while we should praise those who suffer for the sake of the kingdom, we must not condemn those who flee into another city, so to speak.


Response to "Christmas Wars"

April 18, 2013

Steve Hays has a post called “Christmas Wars,” about objections to Christmas (link to post). As a non-celebrant of the day, I thought it would be interesting to review his identified objections and his responses to the objections.

1. Constitutional Objection

As far as I know, Steve’s right about this.

2. Genetic Objection

Steve has two responses here. The first isn’t really argued, so I’ll pass over it. The second is that the meaning of the holiday is properly defined other ways than by its origins. That’s certainly true, at least to a degree.

Yet I think that the response misses the objection. The objection is, in essence, that Christmas is tainted by its pagan roots. Thus, partaking in the celebration is partaking in paganism. The reasoning would be from the issue of meat offered to idols. We are not to partake in the ceremonies of the heathen. If pagan origin of the holiday means that those participating in it are participating to some degree in a pagan religious celebration, they should not.

Incidentally, I think the weakness of the objection lies in the argument that the co-opting taints the holiday. Isn’t that rather like saying that Reformation Day is tainted by Halloween? I don’t really buy that.

3. Calendrical Objection

I don’t buy Steve’s first response here, which is that it is “dubious” that Jesus was not born on December 25. We really have no good reason for thinking that December 25 is the day of Jesus’ birth. The best Steve can do here is to say that there is not iron-clad proof that December 25 was not the actual day. Based solely on the fact that the Bible does not tell us the date, there’s about a 99.7% chance that it was not December 25. That’s hardly “dubious.”

Steve’s second response is that the objection is irrelevant. In other words, who cares if it is really Jesus’ birthday? This is a stronger objection, but of course the holiday is sold (by ditties like “God Bless Ye Merry Gentlemen”) as being important because it is Jesus’ birthday.

4. The So-Called Puritan Objection

I don’t think Steve accurately represents the Puritans’ views here. The objection he identifies is the objection that it is “wrong to observe any (religious) holiday that isn’t commanded in Scripture.” I’m not sure he could find any Puritan actually saying that.

Steve’s first response is to allege that this is a false dichotomy. Perhaps it is, at least as stated – but I don’t think the Puritans would state it that way.

Steve’s second response is to allege that the observation of the Lord’s Day would also fall prey to this objection. A full response would require a lot of detail, but suffice that the Puritans did believe that the Lord’s Day is a religious holy day commanded by Scripture.

5. The “Baptist” Objection

I agree with Steve’s responses.

6. The Commercialization Objection

I agree with Steve’s responses.

7. The Politically Correct Objection

I agree with Steve’s responses.

8. The Ethical Objection

I agree with Steve’s first response, to wit that Christians can adopt less than the full package of “Christmas” customs. As to his second and third responses, I disagree. You shouldn’t lie to your kids – and while kids may be upset that they were not lied to, one should not lie in order to avoid alienating one’s kids, since a good end cannot justify an evil means.

– TurretinFan

Fourth of a Thousand Responses …

October 27, 2012

My pal Steve continues:

Just to review, in discussing the possibility that domestic violence might be grounds for divorce, one argument I used was an a minore ad maius argument.

An a minore ad maius argument is a special type of a fortiori argument, which is, in turn, a special type of argument from (or by) analogy.
There are two types of a fortiori arguments:
a minore [sic for minori] ad maius (lesser-to-greater)
a maiore ad minus (greater-to-lesser)
Arguments from analogy are very common in ethics, law, and science. And they are common in Scripture.
For instance, the Mosaic law contains a great number of case laws. A Jewish judge was often required to reason by analogy from a case law to a comparable situation.

a) Was his argument that it “might be” or that “it is”?  I had the distinct idea that his argument was that it is, not just that it might be.  I am encouraged by this soft-pedaling from Steve.  Perhaps he’s not as dogmatic as I thought he was, or perhaps I’ve even helped him see another side of the issue.

b) Nearly all the laws in the Torah are not “case laws,” notwithstanding Bahnsen’s popularization of that description.  Nevertheless, they are not laws in the same form that either modern Americans or modern Europeans are used to seeing.  One might describe their approach as something like “central legislating.”  There is a discussion of what to do if an ox gores someone.  There’s no discussion of what to do if your domesticated rhino gores someone.  Well, you generalize a principle from the ox goring case, and you have a law applicable to the rhino goring case.

c) Most of those applications are not instances of either “lesser to greater” or “greater to lesser” arguments.  A rhino is not a greater ox, nor is getting gored by one horn instead of two really a lesser injury.  So, the laws of the Torah are not a “for instance” of either lesser-to-greater or greater-to-lesser.

d) Nevertheless, there might be cases where lesser-to-greater or greater-to-lesser reasoning would be an appropriate way to generalize a principle. I’m not sure what cases Steve has in mind, though (other than the disputed case of generalizing from slavery to marriage).

Steve continued:

In his various responses to me, TF has stated what he considered to be conditions for a valid a fortiori argument. For instance:

But slavery isn’t a greater degree of the same kinds of obligations as marriage, so I assume Steve wouldn’t use that defense. Both apples and oranges are fruit, but that doesn’t really address the objection.
The objection could be briefly expressed this way: the argument you are using requires comparing two things that lie at different points on a single spectrum, with the second thing on the same side but farther from the dividing line that divides the spectrum; however, you haven’t established either that the two things are on the same spectrum or that the second thing is farther away from the dividing line that divides the spectrum.
Now let’s compare his criteria to the following statement:
But the free gift is not like the trespass. For if many died through one man’s trespass, much more have the grace of God and the free gift by the grace of that one man Jesus Christ abounded for many (Rom 5:15).
That’s a classic a minore [sic for minori] ad maius argument. If x, then how much more y.

a) That is not a classic a minori (from the lesser) ad maius (to the greater) argument.  It’s a contrast between lesser and greater, but it is not an argument from the lesser to the greater.

b) Rather, a classic a minori ad majus is this:

John 10:33-36
The Jews answered him, saying, For a good work we stone thee not; but for blasphemy; and because that thou, being a man, makest thyself God.
Jesus answered them, Is it not written in your law, I said, Ye are gods? If he called them gods, unto whom the word of God came, and the scripture cannot be broken; say ye of him, whom the Father hath sanctified, and sent into the world, Thou blasphemest; because I said, I am the Son of God?

The lesser here is mere mortals being justly called “gods” by virtue of receiving the authority to judge based on the word of God, how much more justly is the very Word of God called the Son of God?

Notice, though, that sin and grace differ in kind. They don’t occupy the same spectrum. Paul’s a fortiori argument involves a negative comparison. So TFan’s criteria would invalidate Paul’s argument.

Paul wasn’t using an a fortiori argument there.  Paul was explaining a contrast between sin and grace.

In his latest reply, TFan begins by saying:
But it seems that Steve’s major argument for his position is this one:
    c) There is also an argument from analogy. A battered slave could be manumitted (Exod 21:26-27). A fortiori, a battered wife can divorce her husband. What’s true in the lesser case of a slave is true in the greater case of a wife, for a wife has greater rights than a slave.
This argument is invalid.  Just because something leads to the release of slavery does not imply that it leads to the release of a marriage.
i) Of course, that’s a caricature of my actual argument. I never said or suggested that just because something leads to the release of slavery, this entails that also it leads to the release of a marriage. So TFan is misrepresenting the actual argument.

a) But an actual a fortiori argument is a deductive argument whose premises entail their conclusion.  Calling his argument “a fortiori” may be a caricature of Steve’s argument, but with respect it’s not my caricature.

b) More to the point, since Steve is not contending that his argument entails his conclusion, why are we even continuing to discuss this point.  Effectively, Steve has conceded the argument.

Yet Steve continued:

ii) In addition, this wasn’t my “major argument.” It’s one of several. I don’t think one is more important than another. It’s more of a cumulative case argument.

a) I anticipated this kind of response and addressed his other two arguments.
b) Yes, “major” is my characterization.  I thought it was the best of three bad arguments.
c) Three fallacious arguments don’t really mount a cumulative case, from where I sit.

A Hebrew slave was released from bondage upon reaching a seventh year of service.  But no serious person would suggest that a Hebrew spouse was released from marriage upon reaching a seventh year.  Thus, the fact that something led to the release of a slave does not imply that the something should lead to the release of a spouse.
Likewise, it’s worth noting that the provisions that warrant a divorce (adultery/fornication and actual desertion by an unbelieving spouse) are not things that warrant the release of a slave.  Indeed, it is absurd to suppose that if a slave’s master commits adultery, the slave is free to leave.  Likewise, in the law Hebrews were not commanded to let unbelieving slaves go free if they wished to go free. Furthermore, while death of a spouse liberate the other from the marriage, the death of a master does not liberate a slave.
Here TFan tries to invalidate my argument by coming up with disanalogies. And, indeed, one way of trying to invalidate an argument from analogy is to bring up counteranalogies. However, that only works if the counteranalogies are relevant.

a) The relevance of the counter-analogies is hardly disputable.  Steve is arguing that a condition existing in the case of slaves should lead to a similar result in the case of wives.  But that’s not a general rule – in fact the general rule is the opposite.  The “counter-analogies” are actually illustrations of the general rule.

b) Of course, Steve has to give us a reason to accept his argument from analogy.  While I think my illustrations show that his analogy runs contrary to the general rule, the burden is on Steve to establish the ground for his assertion, not on me to provide proof of Steve’s error.

Take the following comparison:
15 Then the Lord answered him, “You hypocrites! Does not each of you on the Sabbath untie his ox or his donkey from the manger and lead it away to water it? 16 And ought not this woman, a daughter of Abraham whom Satan bound for eighteen years, be loosed from this bond on the Sabbath day?” (Lk 13:15-16).
That’s an a minore [sic for minori] ad maius argument. Jesus is reasoning from the lesser case of thirsty livestock to the greater case of a handicapped Jewess. If we show that much concern for livestock, shouldn’t we show at least as much (indeed, far more) concern for a disabled woman–indeed, a woman who’s a member of the covenant community?
(See Lk 14:1-6 for a similar a fortiori argument.)

a) In fact, Steve is right that these are examples of an argument from the lesser to the greater (the Luke 14 passage refers to the fact that if preservation of life of livestock justifies sabbath breaking, even more so healing a man justifies sabbath breaking).

b) In both cases (Luke 13 and Luke 14) small acts of mercy justifying sabbath breaking are used to prove that large acts of mercy also justify sabbath breaking.

Now imagine if TFan were to take the same dismissive approach to this argument that he does to mine:
The inference from the ox to the woman is invalid! For instance, the law says “If the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death” (Exod 21:29).
But if you compare a woman to an ox, then if a husband knows his wife is accustomed to assaulting people, but doesn’t keep her under lock-and-key, and she kills somebody, then the husband should be executed. For the woman is to the ox as the husband is to the owner. Jesus’ argument is absurd!
Likewise, the law says “If a man steals an ox or a sheep, and kills it or sells it, he shall repay five oxen for an ox, and four sheep for a sheep” (Exod 22:1).
But if you compare a woman to an ox, then if a man steals (i.e. commits adultery with) another man’s wife, then the adulterer shall repay the cuckolded husband by giving him five wives. No serious person can accept Jesus’ reasoning!
Using TFan’s tactics, it would be easy to make a mockery of our Lord’s a fortiori argument. But the dissimilarities are incidental to Jesus’ argument.

a) Oy vey!  Obviously, Steve’s blockquote is his own very creative imagination, not anything I wrote.
b) And, of course, Jesus’ argument is a legitimate argument.
c) But just because Jesus makes a legitimate argument in this valid deductive form, doesn’t mean that Steve can call his argument a “from the lesser to the greater” argument and get whatever conclusion he likes.
d) That’s particularly the case when Jesus’ argument entails the conclusion whereas Steve has already disclaimed that his own argument entails the conclusion.

i) Now let’s compare Jesus’ argument with my argument.
If it’s permissible or even obligatory to water an ox on the Sabbath, then how much better should we treat a handicapped Jewess?
If it’s obligatory for a master to release a slave whom he’s wounded (even if it’s a minor, albeit irreparable injury, like a broken tooth), then how much greater is the obligation of a wife-beater to release his battered wife?
ii) Keep in mind, too, that a wife and a slave have far more in common than an ox and a woman. Using TFan’s spectral argument, a wife and a slave are closer to each on the spectrum than an ox and a woman.

a) Again, what a mess!  He’s now comparing Jesus’ argument to his own.  But he doesn’t see the difference!
b) For example, Jesus is making a comparison between a work to achieve a minor mercy to a work to achieve a major mercy, and alleging that if the former justifies breaking the sabbath, so does the latter.
c) A broken tooth is not only a permanent injury but can create pain that lasts a long time.  I’m not sure that “minor” is really an accurate characterization of it, except as compared to losing an eye.
d) Steve seems to be identifying the tooth as a minor injury in comparison to the battery of a wife.  But, of course, battery does not necessarily cause enduring physical pain or permanent injury.  So, this is a confused comparison at best.
e) But let’s try to help Steve out.  Suppose that the injury to the wife is greater.  That would clearly justify releasing the wife from slavery, if it were a greater injury.  But the wife is not in slavery.  She’s in a different kind of relationship to the injurer, the relationship of marriage.  Moreover, marriage is not simply a lesser form of slavery.  Rather marriage is something God actively promotes and protects.  By contrast, slavery is given the back of the hand – regulated but not really advocated.
f) So (as noted above) Steve’s argument doesn’t follow.  Just because a smaller injury than wife-beating (we’ll assume wife beating is a bigger injury) justifies release of a relatively unimportant bond, does not mean that a larger injury justifies the release of a highly important bond.  We’re back in the “two dimensions” land I mentioned originally in trying to explain Steve’s mistake to him.

iii) Take another argument from analogy. If a sundial is a timepiece, and a digital watch is a timepiece, then if I can tell the time by my digital watch, I can also tell the time by a sundial.
Is that valid? Well, in one respect a sundial and a digital watch are the same kind of thing. They both are timepieces. At that level of abstraction, they are the same kind of thing.
Yet in most ways they are very unalike. The basis of the analogy is functional or teleological. Both devices were designed to do the same thing, although one is more accurate than another.
Same thing if you compared an abacus to an electronic calculator. Are they the same kind of thing? Same in what respect? In most ways they differ in kind.

a) This tangent by Steve has very little to do with the discussion.
b) Steve’s “another argument” plainly is not an a fortiori argument.
c) Steve’s argument seems counter-intuitive, in that children who can read a digital clock can have trouble reading analog clocks, like a sun dial.
d) The same is true of an abacus.  Lot of people who can use a calculator have no idea how to use an abacus.

iv) One problem is that TF doesn’t seem to appreciate the difference between deductive and inductive logic. Arguments from analogy can either be inductive or deductive. In the case of inductive arguments, the conclusion doesn’t follow by strict implication. We’re dealing with probabilities. But that doesn’t mean you can discount an a fortiori argument out of hand simply because it won’t yield a necessary conclusion. That’s to misunderstand the nature of analogical arguments in this respect.

The a fortiori is essentially a deductive argument (citation)(see the discussion here for more precision, with Hebrews 10:28 given as an example), and Steve claimed his argument was a fortiori.  Steve now denies that his argument is deductive, but instead seems to suggest it is inductive.

Moreover, even if the conclusion were supposed to come in a non-strict way from the premises Steve offered, the problem is that they don’t.  In other words, Steve has not only not demonstrated his conclusion he hasn’t given a us a good reason to think his conclusion probable and/or reasonable.  All he has offered (in this argument) is a strained comparison to slavery.

Thus, there is no good reason to suppose that this argument from analogy is valid.  The two things are non-analogous precisely on the point that the analogy aims to press.
That’s just an assertion.

No, Steve.  That’s the conclusion to the argument that went before.

There are also further problems with this argument.  First, the use of the “rights” framework is anachronistic.  The Scriptures don’t speak of “rights” and specifically in this instance the release of the slave was retributive justice against the master, not a “right” of the slave.
This is another case of TFan rehashing an objection I already dealt with. He’s needs to stop arguing in bad faith. If he raises an objection, and I engage his objection, he ought to take that into account the next time around.

a) It’s a lose-lose for me.  If I engage Steve’s argument in the form he presents it, I’m arguing in bad faith.  If I don’t, I’m arguing in bad faith.

b) If Steve acknowledges that I’m correct in assessing his “rights” based framework as anachronistic, why not just acknowledge it?

c) And, of course, the need to avoid this anachronism would still be a point worth raising, even if Steve thinks he can demonstrate his point without appeal to an anachronistic framework.

It’s easy to recast my argument without reference to “rights.” Indeed, I’ve shown him how that’s done.

a) I’m not sure Steve has shown me how to recast his argument without using a “rights” analysis.  I could be mistaken, of course.  I have imperfect knowledge.

b) And, what happened to it?  Steve goes back to the comment box to dig up discarded positions of mine, but this gem recast argument seems to be unworthy of posting from the comment box (or wherever it is) into the post to answer my point.

Second, it is not clear that a wife had “greater rights” than every slave in Hebrew law.  In this case, for example, if we call what the slave has a “right,” the law does not provide for similar or greater rights for wives.
Steve tried to argue that wives did have greater rights because they had higher social status.  But actually, social status is something of a fluid concept.  For example, in second temple Judaism, the temple apparently included a “court of the women,” between the court of the Gentiles and the court of the men.  Thus, at least in the temple, a male Hebrew slave would have higher social status – he could get closer to the symbol of the presence of God than she could.  Of course, I recognize that in other aspects the social status of a wife was higher – in the home, the slaves would be expected to generally obey the wife.
One problem is that TFan’s argument is a moving target. He will deny something. When I present counterevidence, he sometimes makes a grudging admission. So his argument keeps evolving. If you compare what he’s saying now with what he said before, you’ll notice new concessions.
That’s not necessarily a bad thing, but if you have to keep retrofitting your original argument, then there comes a point when you should ask yourself if your original argument was shortsighted and ill-conceived. If the reasons you end up with aren’t the reasons you began with, then it seems as if you start with your belief, then look for supporting evidence, rather than starting with the evidence. Shouldn’t evidence lead belief, rather than the other way around?

a) Obviously, I agree that evidence should lead belief.
b) And my refinement of my position demonstrates my commitment to that point.
c) Perhaps Steve will join me.  There’s no merit in simply doggedly holding on to one’s original position in the face of sound argument to the contrary, as Steve seems to acknowledge.
d) Moreover, of course, even if I were a scoundrel with an a priori commitment to a conclusion, that’s not an argument against my position, it’s a personal criticism.

Moreover, higher social status is not convertible into greater “rights.”  Whether one characterizes the mechanisms of Hebrew law in terms of “rights,” “legal protections,” “privileges,” or “prerogatives,” there was not some kind of general pattern of providing those with higher social status greater rights, protections, privileges, etc.  Indeed, the law called for a general principle of equality despite social status differences [Lev 19:15Deut 1:17].
i) That confuses equal justice with other kinds of equality. Unequal justice is unjust. Everyone is entitled to equal justice under the law. But not all forms of inequity are unjust. Does TFan really not understand that basic distinction?
ii) Equality…all things being equal. For instance, the rich and powerful were generally in a better position to protect themselves than widows and orphans. In that respect, widows and orphans needed special protection.
But here we’re discussing the issue of domestic violence. Both rich wives and poor wives can be battered wives. Being uppercrust doesn’t automatically shield a woman from domestic violence. That’s a different type of vulnerability than poverty. (Likewise, a rich woman can shoot her husband. His wealth doesn’t shield him from that hazard.)

a) I agree that not all forms of inequality are unjust.  Moreover, my argument in no way suggested such a thing.  This just looks like a straw man.

b) I agree that widows and orphans needed special protection.

c) But guess who else needed special protection: slaves.  Steve has identified a good principle, but it is a principle that undermines his “from the lesser to the greater” argument.  If a small injury to a highly protected person results in a particular outcome, the same injury to a less protected person would not necessarily result in the same outcome.

d) I agree with Steve’s points that domestic violence itself has no relation at all to social status.  But, of course, Steve’s the one who raised the social status point.  I’m glad he agrees with me, but this only reinforces my objections.

There’s another problem with Steve’s analogy, which we could call the “two dimensional” problem.
Let’s remember that TFan originally used the spatial metaphor of a spectrum to evaluate a fortiori arguments. Well, that’s a 2D metaphor. A linear continuum in which two things can be ranged along the same continuum, either closer or farther apart.
So if there’s a “two dimensional” problem, that’s a problem, not with my a fortiori argument, but with TFan’s original criteria for assessing a fortiori arguments. He’s now revising his criteria.

a) I’m free to revise my criteria.  Steve’s argument doesn’t get a pass just because I was less astute in my first set of objections than I am now.

b) And “two dimensional” has more than one meaning.  Steve’s confusion should have ceased when he read my comment in context, but sadly it did not.  To clarify, of course, if one takes a line as “2D” then Steve’s analogy is “3D.” But to keep my original expression, the point is that Steve has introduced an extra dimension.  Instead of a one-dimensional line, Steve’s on a two-dimensional plane.

Let’s suppose that married women were of higher social rank than male slaves.  That’s one dimension.  At the same time, though, marriage is a more binding bond than slavery.  “They twain shall be one flesh” is a bond that is greater than the highest degree of binding in slavery, the ear bored slave who wishes to serve his master perpetually (Exodus 21:6).
How is that a more “binding bond”? In both cases, the party in question makes a lifelong commitment. A legally binding commitment for life, barring dissolution by the actions of the other party.
No doubt marriage is a deeper bond, but not a more binding bond.

a) Why isn’t a deeper bond a more binding bond?  Why is duration the measure of binding instead of depth?  Steve seems to admit the reason for accepting my conclusion but inexplicably does not grant the conclusion.

b) And it is more binding as well because the marriage union is described as “what God hath joined,” whereas the binding of the perpetual servant is derivative of that (“I love my master, my wife, and my children”).

Husbands have a duty to sacrifice themselves for their wives in a way that no master is called upon to act toward a slave.  That’s another dimension.
But that plays into my argument. A husband has higher duties to a wife than to a slave. So what if he’s derelict in his duty? What’s the remedy?

a) The preliminary question is, “is there a remedy?”
b) After all, the woman is flesh of his flesh.  If he injures his own flesh, is there a remedy?
c) Even if there is a remedy, the remedy cannot be the same as the remedy for the slave, because the woman is not in slavery.

So, even if wives have greater rights than male slaves, the bonds of marriage are stronger.
Stronger in what sense? Legally stronger? I don’t see the basis for that claim.
Emotionally stronger? I’d hope so. Does a husband have stronger obligations to a wife than a slave? Yes. But how does that undermine my argument?

a) The fact that the bonds of marriage are stronger can be seen from the fact that:
i) A woman cannot be redeemed from marriage, like a slave can from slavery.
ii) Hebrew slavery was terminated on the mere passage of time, marriage is not.
iii) Moreover, dealing with the explicit text of the law, the very provision Steve is relying on finds no counterpart for wives.
iv) And as noted above, the divine putting together is the strongest possible union of two humans.
b) The way in which it undermines Steve’s argument is that it shows that his conclusion does not follow from his premise, as already explained above and seemingly acknowledged by Steve.

And the problems don’t stop there.  It is not mere battery of a slave that gives the slave freedom. The slave gets freedom in the case of significant permanent physical injury.  Specifically, the slave gets his freedom for the loss of an eye or a tooth (Exod 21:26-27).
But Steve’s move in his argument is from permanent physical injury to mere battery.  That’s a move from greater injury to lesser injury.  Even if permanent physical injury could justify breaking the marriage bond, Steve would still need to find some justification for something less than permanent physical injury breaking the marriage bond.
Well, that’s a bait-n-switch. The a minore [sic for minori] ad maius argument doesn’t operate at the level of the injury, but the level of the obligation to the injured party.

a) I’m pretty sure bait and switch is when you promise one thing and deliver another.
b) This looks like an evolution of Steve’ argument within the post.  Recall that above he was pointing out that a broken tooth is a minor injury.  Was that a red herring?
c) And what does Steve’s evolved argument look like?  It still has the same fundamental problem we discussed above.  The wife can’t be released from slavery, because she’s not in slavery.  So even if we agree (and why wouldn’t we) that an equivalent injury to one’s wife is more heinous (greater in that sense) as a violation of one’s obligations, we can’t conclude from that whether this more heinous violation deserves a penalty that is a certain amount more severe than the loss of a slave.

There’s an even more fundamental framing problem with Steve’s argument.  Why focus on a wife?  If a wife has high social status, surely in Hebrew law a husband has even higher social status.  And surely a free husband would have higher social status than a female slave.
But, of course, a “battered husband” isn’t nearly sympathetic enough for Steve’s argument. Moreover, if “social status” were a determiner of degree of divorce rights, Steve’s argument would imply that men in general should have more divorce rights than women, and that rich men should have more divorce rights than poor men.  But one cannot imagine Steve seriously advocating such an absurd position.  Therefore, Steve’s argument should be rejected, to avoid the reduction to absurdity.
i) I focused on the wife because I was responding to a YouTube clip of something Piper said which went viral on the Internet. I think Piper’s response was inadequate, and damaging to the complementarian cause.
I also pointed out that the question was unfair to the degree that it skewed the issue by its one-sidedness. Has TFan forgotten that already?
ii) In addition, TFan is attacking my position from an essentially egalitarian perspective. He acts as if it’s inconsistent or hypocritical of me to focus on battered wives rather than battered husbands.
But as a complementarian, I don’t think men and women should be treated alike in every respect, for men and women are unalike in some important respects.
Take a woman slapping a man in the face. There’s a long tradition of women doing that. You have that in classic Hollywood films, where a movie star like Joan Crawford slaps the leading man. He’s expected to stand there and take it, whereas he’d never take it from another man, precisely because he’s a man and she’s a woman. Back then, Hollywood films were more chivalric.
If a woman slaps a man, that doesn’t harm him. Rather, that dishonors him. It’s a symbolic gesture.
By contrast, if a man hits a woman, he can do real damage. Do I really need to explain that to TFan?

a) Chivalry is also an anachronistic framework.  Chivalry was not the operating framework of the OT.  And Chivalry is only example of complementarianism.
b) I appreciate Steve’s clarification about his topic selection.
c) There is additional hermeneutical danger to Steve because he’s treating some passages as if they apply equally to men and women, but then recognizing (like a good complementarian) that not all things apply equally to men and women.  The danger is that his commitment to chivalry is going to guide his selection, rather than the text itself in its original cultural context.

iii) Now, it is possible for a wife to inflict grave physical harm on her spouse. But that generally involves more than using her bare hands. Take the infamous case of Lorena Bobbitt. So, no, I don’t think a husband should put up with serious physical abuse from his wife–unless he provoked it (if it’s retaliation for his own abuse, that’s a different matter.)

I think a husband is permitted to demonstrate Christ to his wife by enduring persecution for the sake of the gospel at her hands, even to the point of laying down his life.  I think a wife is also permitted to do that, although I think that the Scriptures provide a greater encouragement and exhortation to men to sacrifice themselves for their wives.  We are all permitted to turn the other cheek, although we’re not required to do so in all cases (to be clear).

Let’s take for granted that “domestic violence is a travesty of what marriage represents,” as to the two aspects identified.  Let’s even assume that it is the “antithesis of how marriage is supposed to function.”
It’s striking that TFan merely grants that for the sake of argument, as if those are questionable assumptions.
However, even if those statements are true, they fall short of justifying “domestic violence” as a ground of divorce.  These would just be legitimate complaints about sin, or arguments that this sin is severe (“travesty” has that connotation).  So, this is the weakest of Steve’s three arguments.  He doesn’t even include a step in the argument that leads to a conclusion in the form of “and thus divorce is justified based on domestic violence.”
i) I said at the outset that I wasn’t presenting a full-blown argument for domestic violence as a legitimate ground for divorce. Remember the context. I was responding to Piper’s answer. And I was outlining arguments to the contrary.
ii) But notice how TFan minimizes and trivializes domestic violence by saying “These would just be legitimate complaints about sin.”
Really? If a husband hospitalizes his wife, she “just has a legitimate complaint about sin”?

Yes, appealing to the shocking nature of a horribly sinful act is an appeal to emotion, particularly when it is not part of an argument leading to a conclusion.  I don’t fault people for getting emotionally involved in these arguments, but pointing out that something is a weak argument only trivializes its argumentative value, not its emotional value or its heinousness.

“Steve’s second argument also has problems.  One problem is the idea that marriage is a covenant. While it is popular these days to speak of marriage covenants or “covenantal marriage,” these are not Biblical descriptions of the marriage between a man and a woman.   Nevertheless, Malachi and Jeremiah both intermix covenantal language with the description of marriage.”
Let’s assume, for the sake of argument that Scripture doesn’t formally classify marriage as a covenant. Still, TFan is committing the word-concept fallacy. In Scripture, marriage has contractual elements. It’s the terms of marriage that make it covenantal or contractual, not the label.

a) That’s Steve’s assertion.  It’s waiting for an argument in support of the assertion.
b) There is a difference between a covenant and a contract, not just as to the spelling of the words, but as to the concept.
c) And where does Steve think that marriage is treated as a contract?

Steve’s argument refers to the “terms of the covenant.”  That would be fine if Steve could point us to terms of the covenant that support his position.  The problem is that there aren’t any such terms of the covenant for Steve to point to.

In a sense any violation of any of the duties is “breaking the covenant.”
That oversimplifies the issue. Generally speaking, nonperformance can nullify a contract. If you don’t do what you agreed to do, if you fail to uphold your end of the bargain, then the other party is no longer bound to what he agreed to do, for his agreement was predicated on reciprocity.
If, say, someone agrees to paint your house on condition of a deposit upfront, with the balance due after the job is done, and you don’t make the deposit, then your nonperformance nullifies the agreement. He doesn’t have to paint your house.
On the other hand, the terms of a contract can be drawn up to specify fines or damages in case of nonperformance. In that event, nonperformance doesn’t nullify the contract. Rather, nonperformance (by one designated party) triggers one or more penalties. The contract is still in force to sanction the noncompliant party.
Both the OT and the NT spell out a number of marital duties for husband and wife. What if one spouse has no intention of discharging his or her marital duties? Is there still a viable contract?

a) Whether it simplifies it or oversimplifies it may be a matter of taste.
b) Given that marriage was able to be involuntarily entered into by women, how is a contract a good model? Steve has not given us a reason to think it is.
c) Not every non-performance nullifies a contract.
d) To pick on Steve’s example, if you miss a postage stamp sized portion of the house you were painting, the person can’t claim that he’s excused from paying.
e) As to the alternative remedies points Steve raises, these don’t seem to be relevant.
f) I suppose Steve means to say that one spouse has no intention of fully discharging his or her marital duties. If they had no intention to discharge any of the duties at all, it would look something like desertion.
g) But when only partial compliance is in play, there may be viability or not … it’s hard to say from such a generalized statement.

The muddy sheets is not severe enough but “domestic violence” is severe enough.
Why does TFan keep putting domestic violence in scare quotes? Does he think that’s not a real phenomenon?

a) The concept of “domestic violence” carries with it a bunch of modern baggage.  For example, many consider spanking children “domestic violence.”  I realize it is the term given to Steve, and Steve is answering the question posed.

b) But yes, I don’t like the term.

c) I’m well aware that there are husbands and wives who injure one another.  Is that even a serious question?

But why does Steve get to decide what is severe enough?
Well, that’s a peevish way of putting it. But if we take Biblical ethics seriously, that means we must extrapolate from sample cases or Scriptural principles to analogous situations. That’s Protestant casuistry (e.g. Williams Ames). That’s what pastors have to do. Likewise, entire denominations must formulate policies on topical social issues.

a) I’m not sure how well Steve has positioned himself to be peeved at the point.
b) But the point stands: Steve is advocating that some breach or other is severe enough, and unless he can support that from Scripture, there’s no particular reason to accept his case.
c) Steve’s response misses the follow-up punch to my line.  The follow-up punch is that Jesus tells us what is severe enough.  We don’t need to extrapolate, we can just obey.

Indeed, Jesus’ way of describing the grounds of divorce is exclusive, not illustrative.  Jesus doesn’t say “unless it be for something like adultery” but rather limits it to sexual sin (“except it be for adultery”).
Which, if you press the language, would exclude the Pauline Privilege. Yet, in his latest response to me, TFan accepts that. So TFan makes allowance for another exception despite the very wording of the dominical statement he quotes. If desertion is grounds for divorce, then that doesn’t limit the grounds for divorce to sexual sin. Once again, TFan has tied himself in knots.

I’m afraid it may be Steve, not myself, that I’ve tied in knots.  But I can untangle him.  As I mentioned in my previous post, Jesus identifies the one basis for procuring a divorce.  Paul identifies the one reason for permitting an otherwise unlawful divorce.  The difference is the difference between seeking and accepting, regardless of the mechanism of the divorce (i.e. regardless of whether formally it is a man who divorces his wife).

And at last I’m at the end of part 2 of Steve’s response.  Although, apparently, I’ve missed his explanation that does not rely on a rights-based analysis.


The Third of a Thousand Responses to Steve Hay’s Rebuttal

October 26, 2012

My good friend Steve continued:

This is confused on several grounds:
i) To begin with, TFan has offered what appear to be contradictory statements on 1 Cor 7:15. In an earlier response to me, he said:
Where does the Bible ever speak of a woman divorcing her husband?
In 1 Corinthians 7 Paul addresses the issue of the attempted desertion of a believing spouse by an unbelieving spouse. You are right that a kind of gender neutrality is maintained. Neither a Christian man nor a Christian woman is to prevent the desertion of the unbelieving spouse. You should notice, however, that divorce is not mentioned. May I encourage you to re-read the context of the verse you quoted, and you will see the contrast between men divorcing and women leaving.
Here he seems to deny that 1 Cor 7 is even referring to divorce. “You should notice, however, that divorce is not mentioned.”
Yet in the same paragraph he also says “you will see the contrast between men divorcing and women leaving”–which seems to concede that it does address divorce, but limits that to a male prerogative.
Yet in the same paragraph he also says “You are right that a kind of gender neutrality is maintained.”

The distinction I mentioned derives from the KJV way of translating 1 Corinthians 7, which seems to reflect interpretation of the text more than it reflects the underlying sameness of the Greek verb.  So, I don’t think simply relying on the KJV here is especially helpful, since the point is disputed.  Which is why I had said in my positive presentation:

“There is some question about whether women ever divorced their husbands even in the NT era. There is no discussion about wives writing writs of divorcement for their husbands, and yet the discussion of marriage relationships is sometimes balanced (see Mark 10:11-12 and 1 Corinthians 7).”

Steve responded:

But if the discussion is “balanced,” if  “a kind of gender neutrality is maintained,” then there’s no “contrast between men divorcing and women leaving.”
On the face of it, TFan is twisting himself in knots. I think the reason for his contradictory explanations is that he wants to reserve 1 Cor 7:15 as a prooftext for the right of men to divorce women, but not vice versa. Unfortunately for him, appeal to 1 Cor 7:15 either proves too much or too little. If it’s a prooftext for divorce, then it applies irrespectively to husbands and wives. The only way of denying that to women is to deny it to men.
Apparently, that’s why TFan is so equivocal in his treatment of 1 Cor 7:15.

a) Actually, on the face of it TFan is leaving behind his argument that was based on the interpretive gloss of the KJV.
b) And even if that is not on the face of it, that’s what I’m doing. I’m not using the arguments from the combox in my positive presentation, because they are flawed.
c) 1 Corinthians 7:15 is not being used in my positive presentation as a prooftext for the right of men to divorce women.  In fact, 1 Corinthians 7 is about Christians permitting divorce in certain cases where Christians themselves could not justly divorce their spouse.
d) The fact that marriage breakups apply both to men and women is true, whether or not the verses are discussing the mechanism for that break up.

ii) Sensing, perhaps, the inadequacy of his exegetical arguments, TFan tries to bolster his case by a last-ditch appeal to the Westminster Confession. But that’s an illicit appeal to authority. You can’t rightly invoke the WCF to leverage the interpretation of Scripture. Your exegesis just stand or fall on the merits.

Not every reference to an authority is an illicit appeal to authority.  And mine is not such an illicit appeal.  Surely Steve recognizes this category of licit references to authorities – he refers to authorities frequently.

iii) Moreover, his appeal to the WCF is self-defeating. For the WCF doesn’t confine the right of divorce to husbands.

Well, actually I mentioned the WCF in the context of what the possible grounds for divorce are, not who can divorce whom.  The WCF, as Steve points out, uses a gender neutral approach that does not specifically state whether both men and women can divorce, but certainly tolerates such a view.  And I don’t think we would need to exclude people from the ministry if they held a wrong view on such a minor point, theologically speaking.

v) In addition, the WCF is a 17C document. But 17C society was quite hierarchical. You had upperclass women and lower class men. For instance, when Richard Baxter married Margaret Charlton, he married up. She was his social superior. His father was genteel poor whereas her father was a wealthy justice of the peace.
Does TFan think Puritan or Anglican women in the 17C never had the legal right to divorce their husbands? If we’re going to interpret the WCF in its historical context, we have to take social class into account. Some women outranked some men. And that had legal implications.

a) As mentioned above, my comment was not intended to assert that the WCF held that only husbands can divorce.  So, the question is mostly moot.
b) My recollection is that generally only men could divorce in that particular society:

The 1857 Matrimonial Causes Act allowed ordinary people to divorce. Before then, divorce was largely open only to men, and had to be granted by an Act of Parliament, which was hugely expensive, and therefore was also open only to the rich. (Long before then, of course, Henry VIII was granted a divorce by the Archbishop of Canterbury, and church courts retained the power to dissolve marriages.)


In fact the Matrimonial Causes Act of 1857 was one example of a legal redefinition of the marriage relationship.  Whether it was for better or worse may be a question Steve would like to assess.  Nevertheless, the law was added to change society, and it had an effect.

Of course, whether or not the Westminster Divines thought that a woman could, in principle, divorce her husband is different from whether such a category existed in the time of Moses.  The answer to the latter question is that it did not.

And with this third response, I believe I’ve now responded to all of Steve’s arguments contained in his first of at least two responses to me.


The Second of the Thousand Responses to Steve Hays …

October 26, 2012

We pick up with new arguments by my good friend Steve:

i) It’s odd that TFan also quotes the Markan and Lukan passages to establish adultery/fornication as the one legitimate ground of divorce, for those Synoptic variants lack the exceptive clauses in Matthew.

This isn’t really an objection to my point. And, of course, the point of quoting the other synoptics is to exhaust the field of inquiry. To demonstrate to the reader that Jesus didn’t offer other exceptions in other cases, just in case the reader is concerned that Jesus offered many exceptions. Instead, Jesus is generally reported just as stating the rule, but in the two accounts in Matthew, Jesus is dealing with a further issue: the one exception to the general rule.

ii) This also illustrates the weakness of TFan’s argument from silence. One the one hand, Mark and Luke give no grounds for divorce. On the other hand, Matthew only gives a single ground for divorce.

Steve is wrong in categorizing this part of the argument as an argument from silence. Jesus says, “saving for the cause of fornication.” That’s not silence, it’s speech. The fact that Mark and Luke don’t mention this exception is an example of silence, but – of course – I’m not arguing from their silence, beyond the fact that they only confirm the general rule.

Steve may be trying to argue from this silence to open season on exceptions, but such an argument would be an argument based on silence.

iii) Moreover, the exceptive clauses in Matthew are worded in terms that apparently exclude any other grounds for divorce. Yet TFan will later concede that 1 Cor 7:15 offers an additional ground for divorce–desertion.

a) Steve is not analyzing precisely here.
b) Yes, there are two exceptions to the general rule.
c) However, only adultery/fornication justifies committing divorce;
d) Whereas only desertion justifies permitting unjustified divorce.

Jesus is addressing the commission of divorce, as contrasted with the permission of divorce.  Paul is addressing the permission of divorce.

iv) It’s also unclear to me why TFan limits the exceptive clauses to “adultery/fornication.” As I pointed out before, porneia has a wider semantic range. It covers a range of sexual immorality, viz., adultery, fornication, incest, bestiality, and homosexuality.

I’m glad for this opportunity for clarification: I mean broadly to include any sexual offense punishable under Hebrew law (as distinct, for example, from lust in the heart). It’s worth pointing out that polygamy was generally not punishable under Hebrew law.

Now, perhaps TFan would say that although the word has multiple meanings, the context of Matthew narrows the semantic scope.

In fact, yes, that’s what I would say. But see my clarification immediately above.

Or he might say that although incest, bestiality, and homosexuality aren’t inherently adulterous, inasmuch as single men and women can commit these sins, yet they are adulterous if a married man or woman commits them.

I wasn’t really going there, no. On the other hand, just because adultery is also incest doesn’t make it cease to be adultery, for example.

But as it stands, his usage lacks due qualifications.

Clarification has been provided.

v) I’m also unclear on why he thinks fornication is grounds for divorce. In standard usage, fornication denotes premarital sex, in contrast to extramarital sex. Is he claiming that unless a man or woman is a virgin on their wedding night, that that’s grounds for divorce?

Yes, of course I am.
a) That’s the primary case in mind the Deuteronomy 22 passage.
b) That’s the reason Joseph was minded to quietly divorce Mary.

What about someone who was sexually active before he (or she) became a Christian? Is he debarred from marriage? Considering the fact that many 1C converts to Christianity were former pagans, it’s unrealistic to think most of them were celibate prior to marriage. For instance, Greek males typically deferred marriage until the age of 30. In the interim, they had recourse to prostitutes.

a) Steve is still assuming that women had the option of divorcing their husbands.
b) But, even assuming we were to grant that they did, it would be undisclosed lack of premarital sexual purity that is in mind.  The man thinks that the girl is a virgin, but discovers on their wedding night that she is not.
c) Further to (b), premarital sexual activity between the now-spouses would not be a legitimate ground of divorce.  In fact, it might be the reason for the marriage.
d) Likewise, divorced women, former prostitutes, and widows were generally permitted to marry/remarry.  These would all have been sexually active women, and the prostitutes impurely so.
e) The laws about divorce in the Torah that we are discussing were not unique to Hebrews as distinct from aliens.  (Contrast to the prostitution law we discussed early in this dialog, which only forbade Hebrews from being prostitutes.)
f) Even if we were to say that known premarital sexual activity was a potential ground of divorce, that does not “debar” or even “bar” anyone from marriage. Just because a ground exists doesn’t mean that the party who has the ground must exercise it. A man can forgive his adulterous wife rather than divorcing her.  A man can forgive his non-virgin bride.

vi) For some strange reason, TFan seems to think Jesus is correcting the rabbinic interpretation of Deut 24:1-4. I don’t see where he finds that in the text. Rather, I see Jesus doing something more radical. Rather than correcting their misinterpretation of Deut 24:1-4, he corrects their misvaluation of Deut 24:1-4. He denies the normativity of Deut 24:1-4.

I find it in the text in “it hath been said …but I say unto you ….”  That formula or one like it is something Jesus repeatedly uses in correcting rabbinic interpretations.  The broad rabbinic interpretation of “found some uncleanness in her” as meaning “for any reason” is corrected by Jesus.

Incidentally, this is why in Mark and Luke the exception is not discussed.  In those passages, Jesus is just stating the general rule, not discussing the one exception.  Moreover, in the Matthew 19 passage, Jesus treats the passage as normative, at least in the sense that it was a permission under civil law.

Jesus bypasses the appeal to Deut 24:1-4 by going back to Gen 1-2. He treats Gen 1-2 as the primary, normative passage, while he demotes Deut 24:1-4 to a pragmatic, ad hoc concession to the reality of sin.

It is true that Jesus goes back to Genesis to define marriage.  And it is true that Jesus treats Deuteronomy 24 as a concession to the reality of sinful humans.  Those are Jesus’ statements in Matthew 19.  But Jesus is also addressing the issue of whether the law’s concession is “for every cause” or not.  In some ways that is more clear from the Matthew 5 passage, which doesn’t include the appeal to Genesis.

Put another way, he abrogates Deut 24:1-4 by sidestepping and sidelining Deut 24:1-4. Jessu opposes Gen 1-2 to Deut 24:1-4.

a) I’m not sure what Steve means by abrogation here.  But there is nothing in the text indicating abrogation, except for the rabbinic “heard it said” view of the passage.
b) Indeed, Jesus explicitly states that he did not come to set aside the law of Moses.
c) I don’t know whether Steve agrees, but we Presbyterians hold that ceremonial law (as distinct from the civil law and the moral law) was abrogated.  We don’t hold that the moral law or the civil law was abrogated.  If Steve disagrees with the tripartite division of the and/or the unique abrogation of the ceremonial law and/or the treatment of marriage and divorce as civil law, we can explore this in greater depth.

vii) It doesn’t make sense to think Deut 24:1-4 alludes to adultery as the ground for divorce. The Mosaic punishment for adultery isn’t divorce, but execution. There’s a different statute that deals with adultery (22:22).

a) Divorce wasn’t a communal punishment of the wife.
b) Not every case of adultery was able to be successfully prosecuted under the laws of the Hebrews:

Deuteronomy 17:6-7
At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death. The hands of the witnesses shall be first upon him to put him to death, and afterward the hands of all the people. So thou shalt put the evil away from among you.
Deuteronomy 19:15One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.

Since in divorce the man writes a bill of divorcement and sends the woman out, neither the death penalty or any other criminal provision is triggered. Thus, legally unprovable cases of adultery could still be covered (like when a husband walks in on his cheating wife, but only he sees the two in the act).

c) I suppose we should add also that just because one’s wife commits adultery does not necessarily mean that he wants to see her dead.  I initially considered not including this item, because Jesus’ explanation relates to the hardness of heart of the men – whereas this seems merciful (Joseph is praised for his initial response to his discovery of Mary’s pregnancy).

Based on linguistic and contextual evidence, Bock and Walton think Deut 24:1 has in view a chronic menstrual irregularity which renders the wife ritually impure, thereby precluding conjugal relations (cf. Lev 12:2-815:14).

a) I’ll happily place Jesus’ interpretation over against Bock and Watson. He has the edge when it comes to authority.
b) While I agree that uncleanness in a woman can refer to her reproductive function (even her healthy function left her periodically unclean), a woman who was never pure enough to have relations would hardly qualify as the sort of woman being discussed in Deuteronomy 24, who goes and marries another man and then gets divorced from him and the original man wants to have her back.
c) And while “after that she is defiled” again could in the abstract refer to her menstrual bleeding, in context it more naturally refers to her having conjugal relations with a man other than her first husband.
d) Furthermore, the bill of divorcement is only of use to a marriageable woman, and a woman who cannot have conjugal relations is not (at least by OT Hebrew standards) marriageable. Such a woman would not benefit from a bill of divorcement. Therefore, it makes no cultural sense to treat the passage as referring to such a woman.

However, it’s unnecessary for us to identify the underlying condition. It’s sufficient to point out that adultery is contextually excluded.

As noted above, it isn’t contextually excluded.

For a post entitled “Understanding Divorce from a Biblical Perspective,” I’m afraid don’t see the evidence that TFan has actually done his exegetical spadework. It seems to be more a matter of rote prooftexting to retroactively validate a foregone conclusion.

At last he’s come to the title of the post, but only just in time to terminate his comments that we’ll be addressing in this post. And I don’t mind his judgment, since whether or not I’ve done the necessary spadework is neither here nor there. What matters is whether the points I’ve expressed are true and come from the text. If they do, I’ll gladly be thought insufficiently trowelicious for Steve’s taste. If they aren’t true and don’t come from the text, spending Bock-and-Watson-like amounts of time simply would make my hole deeper. The key is the truth of the matter, not the degree of effort spent.  It’s not about me, it’s about the truth.

– TurretinFan

Part One of Thousands in Response to Steve’s Rebuttal Post

October 26, 2012

Ok, I don’t really intend to address all of the myriad points in my friend Steve’s latest divorce-related post (link to his post).  Nor do I intend to address only one here.  I’ll start at the beginning and get as far as I can in a reasonable amount of time.  Steve is a resourceful and astute thinker, so it’s worth considering his points, even when my opinion is that they are in error.

Steve states: “TFan has posted a 2-part response to my discussion of divorce vis-à-vis domestic violence. In this post I’ll reply to part 1”  But actually the post to which Steve is responding is my own positive case.  It doesn’t aim or claim to interact with anything Steve wrote.  Steve’s wrongly framing my post.

Steve states: “Divorce is not the only thing the Lord hates. Given what God says about marriage in Eph 5 (to take one example), I’m sure that God also hates domestic violence.
a) Steve uses the term “domestic violence” without defining it.  Clearly God does not hate the corporal punishment of children, which falls within the scope of contemporary definitions of “domestic violence.”  On the other hand, clearly God hates all sin, including spousal abuse (whether violent or non-violent).
b) In the context of this discussion, though, raising the fact that God hates sin that occurs within the marriage is red herring.  All parties agree to that.

Steve states: “TFan doesn’t seem to grasp the nature of case law, even though I already went over that ground.
a) Steve has leaped to a conclusion that isn’t warranted.  While Steve does word it tentatively, this is supposedly the leading example of “several serious problems” in my post.
b) Steve is continuing to treat my positive post as though it were a response to him.
c) Steve’s own understanding of the case law needs refinement, as we’ve seen in the last post and as we may see below also.
d) Whether or not I grasp the nature of the Torah is actually not the issue.  It’s not about me (or Steve), it’s about the truth.

Steve states: “OT case law is illustrative rather than exhaustive. It doesn’t cover every conceivable situation. Rather, when an issue arose which wasn’t specifically addressed in the Mosaic law, Jewish judges had to extrapolate from the nearest applicable law.

a) My comments don’t deny that.  You don’t have to think that the Torah was exhaustive in order to identify the absence of a particular concept in Hebrew law.
b) Moreover, amongst the provisions of the Torah is a provision that limited judicial legislation:

Deuteronomy 4:2
Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.
Deuteronomy 12:32
What thing soever I command you, observe to do it: thou shalt not add thereto, nor diminish from it.

Steve continues: “So TFan’s argument from silence is fallacious.
a) Steve’s wrong about claiming that this in argument from silence.  My statement was: “There was no category of women divorcing their husbands.”  Steve can try to claim that this is a fillable gap in the Torah that judges could extrapolate into, but he can’t reasonably deny the fact that the category wasn’t there. My comment is a factual observation, not an argument from silence.
b) And, of course, see Deuteronomy 4:2 and 12:32.  There were restraints on judicial legislation.  That’s a positive argument from a written rule.

Steve continues: “Notice that TFan doesn’t even attempt to show that my explanation of case law is false. He simply ignores it.
a) Again, Steve is acting like my post was a responsive post, rather than the positive presentation that it was.
b) And, of course, not all of Steve’s observations about the Torah were false.  Some of them are just irrelevant (like the fact that judges had to extrapolate in certain cases).

Steve continues: “I find it disappointing that he refuses to argue in good faith. When he raises an objection, and I present a counterargument, it’s incumbent on him to acknowledge and interact with the counterargument. For him to simply repeat the same objection, as if no response was offered, is intellectually frivolous.
a) I wasn’t offering an objection in the post in question, as noted several times above.  I was making a positive case.
b) Given that Steve is clearly aware of my second post (the one that addressed his arguments), it’s strange for him to act as though I didn’t offer responses to his arguments.
c) I hope that Steve doesn’t think that interacting with some of his arguments somehow intellectually commits me to responding to all of his arguments.  If so, he may be in for further disappointment.

Steve continues:

ii) In addition, I presented another counterargument. To quote myself:

To begin with, the complementarian position is that masculine nouns and pronouns can include women. That follows both from the conventions grammatical gender and generic masculine usage as well as the theological fact that men can function in a representative capacity for women.
For instance, the soteriological and eschatological promises (or threats) of Scripture are often addressed to male referents, yet they implicitly include women. Women as well as men can be saved or damned.
Of course, masculine language is sometimes used to single out males. But there’s no presumption to that effect. Rather, that’s context-dependent.

a) That’s not a counter-argument.  It’s an observation about a rule of grammar/syntax without an application of the rule to the particular case.  The fact that sometimes (or even often) a male is used as an example for both male and female is quite true.
b) A counter-argument would have a next step of showing why in a particular verse a masculine noun or pronoun must be understood generically.
c) Steve seems to be setting up a polemical idea that there is only one complementarian position.  But, of course, there are a range of complementarian positions, ranging from a highly patriarchical to highly feminist.

 Steve continues:

i) In his latest response to me, TFan blows right past that. Once again, it’s disappointing when he refuses to argue in good faith.

ii) In addition, he’s arguing like a feminist or egalitarian. “Evangelical feminists” deny generic masculine usage. They assume that all grammatically masculine usage is gender-specific and gender-exclusive. TFan seems to share the same understanding. I find it odd that he’s siding with feministic hermeneutics.
iii) Regarding Deut 24:1-4: if you read it carefully, this statute didn’t authorize men to divorce their wives.

This statute doesn’t institute, command, or condone divorce. It’s really about remarriage after divorce rather than divorce proper. It takes a certain custom for granted, then protects the divorcée against certain consequences of the customary divorce.

a) It’s a little dull for Steve to continue to harp on not getting enough responsive attention from me in my positive presentation of my position.  It’s worse than dull for Steve to suggest that it is somehow “bad faith” for me to offer a positive presentation, rather than a rebuttal of his views.  But, at least I’m offering one now, so hopefully he can feel less disappointed (though see above, I’m not committing to answering every comment he may ever make).
b) Whether I’m arguing “like a feminist or egalitarian” only matters if they argue wrongly.  Instead of trying to tar me with association to them, perhaps Steve can focus on the actual arguments.
c) Instead of actually engaging the argument I wrote, Steve sticks a position in my mouth that I didn’t take.  I didn’t assert that “all grammatically masculine usage is gender-specific and gender-exclusive.”  Steve’s arguing against a straw man.
d) Whether or not Deuteronomy 24:1-4 authorizes men to divorce their wives, or merely regulates that divorce is mostly immaterial.  I didn’t argue that it authorizes men to divorce their wives.  I will point out that the KJV and the ESV have different interpretations of the underlying Hebrew text (they also differ on the Malachi passage I quoted in my positive presentation).
e) It’s worth noting, though, that Steve’s interpretation of Deuteronomy 24 differs not only from the rabbinical views but also from Jesus’ view.  Jesus stated:

Matthew 19:8
He saith unto them, Moses because of the hardness of your hearts suffered you to put away your wives: but from the beginning it was not so.

Steve continued:

iv) To take a comparison, the Mosaic law doesn’t ban prostitution across the board. Although prostitution is a sin, not all sins are crimes.

Rather, the Mosaic law takes the status quo (i.e. social reality of prostitution) for granted, then restricts it. Jews are forbidden from being prostitutes.
Likewise, Deut 24:1-4 doesn’t legitimate the right of a husband to divorce his wife under those circumstances. Rather, it takes the status quo (i.e. customary divorce) for granted, then limits remarriage under those circumstances–apparently to limit the harm done to the divorcée, who was divorced against her will.
v) Likewise, it doesn’t address divorce in general, but a very special case.

a) Steve’s comparison is largely irrelevant to the discussion.  Yes, the law only outlawed the act of serving as a prostitute (by an Israelite) and not the act of hiring a prostitute.  And yes, that does not imply that it is ok to go in unto a prostitute, or even that it is morally upright to do so.
b) Perhaps the one relevant part is that Steve is setting up one of my rebuttal points.  Specifically, just because something is a sin does not mean that the law addresses it or provides sanctions for it.  To wit, spousal abuse is a very heinous sin, but that does not mean or imply that the OT law provides a sanction for it.
c) Moreover, Steve seems to recognize that there was not to be gap-filling to address the cases of the alien prostitutes or the men who hired prostitutes.  This reinforces the need for Steve to show why gap-filling or extrapolation is justified in the particular case he has in mind.
d) Whether Deuteronomy 24:1-4 addresses divorce in general may be a disputed point, but it seems like a totally irrelevant point.

I had written:

This is important to remember when dealing with the text of Scripture. It is easy to anachronistically apply contemporary cultural norms to the text. In an age when people are redefining marriage to include reference to same sex couples, one might think that Christians would be on their guard to remember that this is not the first redefinition of marriage.

Steve responds:

That’s a nice exercise in well-poisoning. Remember, though, that the question at issue is whether wife-battery is grounds for divorce. Is that “redefining” marriage? Does TFan think wife-battery figures in the original definition of marriage, which contemporary cultural norms are trying to redefine out of marriage?

a) As noted numerous times above, my post was a positive presentation, not a rebuttal.
b) Well-poisoning is probably a better description of Steve’s repeated assertions early on that he’s dealing with a disputant who is not arguing in good faith or suggesting that I’m using a feminist hermeneutic.
c) And, of course, the “question at issue” for Steve is not the question at issue in the post he’s responding to. He’s not dealing with the positive presentation, he’s treating the post as though it is responding to his position (while simultaneously complaining that it is not responding to his position).
d) Steve’s question is tendentious at best.  More to the point, he’s again suggesting arguments/positions as mine that I haven’t made.  And he’s choosing inflammatory arguments without good contextual basis.
e) To wit, in context “This is important to remember” relates to what I wrote immediately above that line, which had nothing to do with “wife-battery,” as Steve ought to have picked up on.
f) And, of course, the original (Garden of Eden) definition of marriage is not obviously at issue.  At issue is the definition of marriage at the writing of the Torah.  The question is how to interpret the Torah, not what the pre-Fall ideal of marriage was.
g) Was wife-beating a cultural norm at that time?  I wonder what Steve’s response on that point is.  In contemporary times it has a massive negative social stigma that it did not have in America 400 years ago.  Clearly it did not have that stigma in 7th century Arabia.  Now, I’m certainly not suggesting that 1600’s colonial America or 7th century Arabia is the cultural context of the Torah.  Since Steve has raised that question, what does he think the cultural norm was, and what’s his basis for thinking that?
h) But, of course, my comment (in context) was a reflection on the fact that the family was a patriarchy.  Husband and wife did not have equal rights in general – the husband was the ruler.  Today, the cultural milieu is on the feministic side of egalitarian.  In that time, the only category of divorce was of a husband putting away his wife.

Unfortunately, Steve post goes on and on (or perhaps fortunately, Steve is an excellent thinker and it’s always enjoyable to read his posts, even when they are critical of what I write).  I lack the time at the present to deal with every error that he makes or to highlight the many points of agreement between us.


… now and at the hour of our death.

September 7, 2012

Thanks to Steve Hays for pointing me to a recent report of man who, while trying to rescue his idol from her peril found himself her victim, as she collapsed on top of him.

It is a sad story, but illustrative of the foolishness of idolatry. The idol could not pray for the man either now or at the hour of his death. The only way she could be with him at the hour of his death was as the cause of that death. Those who venerate idols become like them (Psalm 115:8 and 135:18).


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