From: firstname.lastname@example.org <email@example.com>
Subject: Re: ra'y as idiosyncratic legal opinion
Date: Monday, February 01, 1999 9:28 AM
><I don't believe we would consider a society free ... [snip]>
Daniel, it is not completely irrelevant for us to extrapolate the vision you
have of a society and its functioning, for two reasons. First, there are two
sorts of proof in the society from which `Abdul-Baha came, `aqli and naqli
or proofs of reason and textual/scriptural proofs. A proof from reason was
recognized by him as perfectly legitimate, and it is the main way he reasons
in Secret of Divine Civilization. If reason can demonstrate that your model
of society will produce a situation in which Gloria Steinem cannot write an
op-ed piece differing with the decision of the U.S. cabinet, and reason finds
such a situation undesirable, then this is a proof in its own right.
"if a scholar has thoroughly mastered a variety of
sciences but is not well grounded in logic, his opinions, deductions and
conclusions cannot safely be relied upon." SDC 30-31
Second, even with regard to textual proofs, you have to harmonize the whole
corpus of `Abdul-Baha's writings. You can't hold fast to one passage and
interpret it in such a way as to do violence to the clear meaning of the other
passages. This is called the hermeneutical circle. My point in the
thought-experiment about the suppression of Gloria Steinem's individual views
was precisely that this sort of society does *not* look like the society
envisaged by `Abdul-Baha in *Secret of Divine Civilization* and *A Traveler's
"Japan has opened its eyes and adopted the techniques of contemporary progress
and civilization, promoting sciences and industries of use to the public,
and striving to the utmost of their power and competence until public opinion
was focused on reform . . . Observe carefully how education and the arts of
civilization bring honor, prosperity, independence and freedom to a government
and its people." SDC 111-112.
Note that `Abdul-Baha contrasts Japan and China in this way: that in Japan a
public opinion could be freely formed and there were those who strove to
influence public opinion toward reform. Obviously, he did not envisage the
abolition either of public opinion or of opinion makers, and nor did he think
such an abolition would have good results.
"Furthermore, any agency whatever, though it be the instrument of mankind's
greatest good, is capable of misuse. Its proper use or abuse depends on the
varying degrees of enlightenment, capacity, faith, honesty, devotion and
highmindedness of the leaders of public opinion." SDC 16-17
And so he expected there to be independent leaders of public opinion quite
beyond the central state. Indeed, in the Japan/China contrast, it was
precisely the rigidity of the Chinese state and the lack of a countervailing
public opinion, that he was condemning.
"interference in matters of conscience causes stability and firmness [in the
one persecuted] and attracts the attention of men's sight and souls; which
fact has received experimental proof many times and often." -Traveler's
So, `Abdul-Baha did not approve of interference in matters of conscience,
and even thought it was in practical terms counterproductive. Do you really
think he wanted the Baha'i authorities to go about interfering in the matters
of conscience of individual Baha'is? Do you think he believed such behavior
>The legislative bodies, according to 'Abdul-Baha, are only answerable to their
>own conscience, sharing ones considerations with them would therefore be
>fruitful, trying to sway popular opinion isn't.
But `Abdul-Baha says:
"In the present writer's view it would be preferable if the election of
nonpermanent members of consultative assemblies in sovereign states should be
dependent on the will and choice of the people. For elected representatives
will on this account be somewhat inclined to exercise justice, lest their
reputation suffer and they fall into disfavor with the public." SDC 23-24
That is, the whole point of *elective* office is that it is less likely to
result in despotism, because office holders naturally wish to be reelected
and are afraid, if they act despotically, that public opinion will turn
against them and they will be turned out of office. But the system of
government you envisage, quite unlike that envisaged by `Abdul-Baha, is one
in which no public opinion about the performance of office holders may be
formed, no criticism may be voiced, and despotism can go completely
unpunished. This situation is *manifestly* not what `Abdul-Baha had in mind
if we look at the whole corpus of his writings.
>Please carry on as much "healthy discussion" as you wish. Feel free to
>think novel thoughts to your hearts content. Feel free to believe that
>Baha'u'llah was an out-of-space alien visitor. Feel free to argue it. Just
>don't try to impose your belief on anyone else.
And, aside from expressing my views publicly, in what exact way would I be
able to *impose* those views on anyone else? That is, if I simply state my
views and even add the disclaimer that they are only mine and have no
authority, then that is all right? But that is exactly what I used to do on
firstname.lastname@example.org, and apparently it wasn't all right.
<<One person can't, by merely speaking, *make* someone else do something.
<<You are blurring very key legal distinctions between speech and behavior
<<that would have the effect of completely undermining the Universal
<<Declaration of Human Rights and the U.S. First Amendment.>
>Rubbish. You can make other people do illegal things and be convicted for
>it. If you put somebody up to murder, even if it is just by talking, you
>can be tried as an accomplice to murder. But neither Human Rights nor US
>law are an issue here. We are dealing with a text and neither Human Rights
>or US law have any exegetical value in this regard.
The problem is that the level of discussion goes back and forth between
simple nonconformity and *criminality*. And the difference you are eliding
is between criminality and nonconformity. Of course, if someone encourages a
person to commit a theft or a murder, that is punishable; and if someone
slanders another person (defined precisely as knowingly making false public
statements about another that have the demonstrable effect of causing real
damage to that person's property or substantial damage to the person's
reputation) that is also punishable.
But you are saying that you wish to extend criminal law to cover speech that
merely advocates change in social policy. If the house of justice rules that
abortion is licit when the mother's life is endangered, someone may not
advocate, according to you, that abortion be altogether banned. Such
advocacy becomes criminal speech just like incitement to murder. And, of
course, (no offense) this is what all totalitarian states do. They make
speech about policy into criminal speech. Happens everyday in Communist
China. How would your society materially differ from that one?
> The claim of authority is a separate act. Some scholars could
>make claims on authority by virtue of their education.
You simply misunderstand here the two possible meanings of authority. The
first meaning in my dictionary is "1. The right and power to command,
enforce law, exact obedience." This is the sort of authority-claim that is
objectionable on the part of an unelected individual.
Away down at the bottom of the column is another entry, a lowly 5a.: "An
accepted source of expert information, as a book or person." Now, it is not
wrong to be an accepted source of expert information. I am acknowledged
among some in the U.S. press and government circles as an authority on the
Middle East. Perhaps you might so acknowledge me, as well. Since I'm one of
four or five academics who have written a whole book about the Baha'i faith,
I'm widely acknowledged as an authority on that subject, as well, in this
narrow sense of having some scholarly expertise in it. *Scholarly*
"authorities" are different from *power* authorities. It is the difference
between *1* and *5a* in the dictionary. It is a different semantic field of
the word. The confusion of the two is pernicious. It would lead to it being
illegal for someone to have scholarly expertise in a subject, lest he or she
become an authority!
Now, scholarly authorities have no actual power to make or enforce laws or to
tell people what to do. And nor do their opinions always hold weight. We all
know scholarly authorities who are very knowledgeable but who are absolute
cranks when it comes to some subjects. Scholars who put forth idiosyncratic
theories are checked by other authorities in the field.
`Abdul-Baha did not think there was anything wrong with having experts, and
he *wanted* them to deliberate policy in public. In fact, he suggested they
be brought together for that purpose. In the current Baha'i society,
expertise is viewed with suspicion and those who have it are most often
chased out of the faith.
"In view of the fact that at the present time such fully developed and
comprehensively learned individuals are hard to come by, and the government
and people are in dire need of order and direction, it is essential to
establish a body of scholars the various groups of whose membership would
each be expert in one of the aforementioned branches of knowledge. This body
should with the greatest energy and vigor deliberate as to all present and
future requirements, and bring about equilibrium and order." SDC 36-37
> This of course is only significant in connection with ra'y. For
>one to say "I believe Baha'is should be permitted to belong to Amnesty
>International," is not ra'y, unless it is advanced as such.
We agree, then. But people have been accused by the Baha'i authorities (in
the first sense) of thought crimes precisely for such non-authoritative
statements of personal opinion. And does anyone seriously believe that
mild-mannered Michael McKenny, a fantasy writer and editor, was claiming
*authority* when he expressed his views on the need for women's equality with
<Obviously, someone with no juridical office cannot issue a *ruling.* Or
if they did, they'd be laughed at. I can't stand in the square and rule
that a Baha'i gay marriage is legitimate in Baha'i law, such that my
ruling has legal effect.>
>Come now. Obviously the days when people made rulings in squares are long
>gone. However, you can easily go on the net and make advances of such
>legal opinions, and I don't see anyone laughing.
You can't make a ruling on the Net, Daniel. And yes, people would laugh.
>Now I want you to focus on this issue, because it appears to be a key
>disagreement in our understanding of the text. You say the passage only
>applies to someone in a juridical office. This, however, is nonsensical in
>a Baha'i context. No individual holds such an office.
When the passage was written, Baha'is would go to a Baha'i muballigh or
learned man for arbitration, and he would in fact give such rulings, which
had real legal force in the community. This was the situation `Abdul-Baha
was addressing. Nowadays, typically such issues would be settled by the
local spiritual assembly, and it is that body that is now under the
obligation not to issue idiosyncratic rulings (ra'y) that differ from those
of the house of justice.
>Suddenly those men of learning, who had formerly swayed great authority
>found themselves bound by decisions of people who often had no legal
>education, and could not even read Arabic.
Excactly, and that is fine. But when those who could not read Arabic begin
telling scholars what they may or may not say in the way of non-authoritative
individual opinion, and whether Baha'i metaphysics has a background in
Neoplatonism, and whether Socrates had tea and crumpets with the prophet
Daniel, then you have a tyranny of the majority and serious human rights
abuses. And that is the sort of thing that is going on.
Ultimately, the real problem is that you do want to criminalize some types of
speech. And the exact "speech-act" that might shade over into criminality is
vaguely defined in your schema. Thus, anyone who states an opinion publicly
could be suddenly charged with having committed criminal speech if anyone in
authority desired to do so, and that person would have no recourse but to
appeal to the very persons who had accused him!
My uncle fought at the Battle of the Bulge so that the SS couldn't do to
people what you wish to allow the Baha'i authorities to do to people--charge
them with criminal speech because they dared differ from official policy. I
don't think you will find most educated people willing to put themselves into
your hands or those of your leaders with assurances that they will be very
just in their determination of whether our speech is criminal or not. I'm
here to tell you that the system has no justice in it whatsoever.
History, U of Michigan
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