The Pound of Flesh, a Communitarian Principle

Abstract

When deliberating culturally sensitive topics, both sides often feel that they are concerned with absolutes and that the other side has neither moral nor legal foot to stand on. The question arises: How can one contain conflicts when core values are at stake? Part of the answer lies in leaving some contested matters out of the public realm. Indeed, some advocate that marriage, for instance, should not be defined by the state and that each couple be left free to form their own marriage contract. Some issues, such as whether abortion should be legal and what constitutes discrimination, the state cannot avoid. If the opposing sides have a strong sense of community on other grounds this may well help them to deal with these differences. However, culture war topics are likely to remain divisive. The answer might be found in leaving these matters to the courts, which in the past worked out middle grounds most citizens learned to live with. Others, though, hold that leaving these matters to the courts exacerbates rather than lessens the divisions, as the “losing” side feels the courts’ adjudication (“legislation from the bench”) foists its decisions without genuine public debate and consensus. The courts may often be the only place these issues can be worked out, however poorly. In either case, all parties involved should show a measure of self-restraint.