Tricky Wording in the Ten Commandments Case

Been meaning to comment on this for days, but been too busy:

From the NYT:

At the same event, Jay Sekulow, chief counsel of the American Center for Law and
Justice, a law firm established by the Rev. Pat Robertson that litigates for
evangelicals and other religious communities, offered a different perspective.
The Ten Commandments have acquired secular as well as religious meaning, he
said, and have come to be "uniquely symbolic of law."

I’m sure what I’m about to write has already been noticed by others, but it’ll make me feel better to write it.

Mr. Sekulow’s claim is a very complex one, problematic in the extreme. It could probably not be more confusing if it had been specifically constructed to confuse.

Let’s consider the claim in a bit of detail. The core of the claim is:

(TC) The Ten Commandments are uniquely symbolic of law

First, (TC) is multiply ambiguous. It might mean any of the following:

(TC1) The Ten Commandments are unique in symbolizing law.
(i.e., only the Ten Commandments symbolize law; nothing else does.)

(TC2) The Ten Commandments function uniquely to symbolize law.
(i.e. they do nothing but symbolize law)

(TC3) The Ten Commandments are unique among things that symbolize law.
(i.e., nothing else symbolizes law like the Ten Commandments do)

(TC3) is a bit of a stretch, but perhaps not too much of one.

Which of the above claims is true?

Clearly (TC1) is false, because there are many other representations of law. The word ‘law,’ for example, represents law. Perhaps Mr. Sekulow is thinking of iconic representations—pictures and suchlike. In that case, we might note that statues of “Blind Justice” also represent law (and justice), as do scales. In fact, such representations of law are reasonably plentiful--one of the maidens in Raphael’s “Vision of Knight,” for example, is such a representation.

But we should also note that Mr. Sekulow and company cannot insist on (roughly) iconic representations, since that would rule out the Ten Commandments itself, which are, after all, primarily verbal/symbolic representations. Making a statue out of them doesn’t change that fact. And if we allow THOSE kinds of symbols of law, then we might as well use the Code of Hammurabi, the Code of Justinian, or the Magna Carta.

So the Ten Commandments are not the only thing that symbolizes law, so (TC1) is false.

(TC2) is obviously false. If the Ten Commandments symbolize law at all (something I will deny below), then they do far more than merely symbolize law. They are alleged to constitute the Abrahamic God’s moral commandments to humans. So, what they symbolize primarily (if anything) is not law as such, and not legal codes, but, rather, the commands of the Abrahamic God. If they represent any such thing at all, they also represent the Abrahamic faiths, Christianity, and the Old Testament. They are also perhaps in some sense representative of theistic ethics and divine command theories of morality. And they rather clearly represent all of these things far more strongly and clearly than they represent law (as such).

So the Ten Commandments do not symbolize only law, but symbolize (if anything) Christianity (and the other Abrahamic faiths) and/or their conception of law. So (TC2) is false.

(TC3) is a harder case because the claim is far vaguer, and expresses a judgment concerning something that’s a matter of degree. How is it, exactly (or even approximately) that the Ten Commandments are superior to other representations of law? Certainly the Ten Commandments do not represent law per se any more clearly or any more strongly than, say, the American Constitution or the Magna Carta. Nor more clearly or strongly than a statue of Blind Justice, or a representation of scales. In fact, as a representation of law per se they are notably inferior to these other representations because the other putative symbols of law are do not specifically represent divine commands to man, such commands being a very peculiar and unusual type of law to say the least.

If the Ten Commandments represent law per se at all, then they are clearly unique in at least one respect: they represent a certain Christian conception of law and the authority of law. But, of course, it is exactly being unique in this way that makes the Ten Commandments--to borrow Mr. Sekulow's word--uniquely unacceptable as a representation of law to be displayed in American courts.

More important than any of the above, however, is that (TC) (and all it’s disambiguated forms) has an extremely important presupposition, specifically:

(TC*) The Ten Commandments represent law

It is telling that Sekulow’s claim merely presupposes this and does not say it outright. It never ceases to amaze me how little misdirection is required to preserve crucial claims from scrutiny. But the fact of the matter is that (TC*) is at best not obviously true and at worst simply false. While it is true that representations of the Ten Commandments represent (one particular set of) laws (specifically, the Ten Commandments), it is not true that they represent law at all. To represent law per se rather than one very particular and peculiar set of (putative) laws is quite different than representing some particular body of laws, just as representing ideas per se is very different from representing some particular set of ideas. My copy of Aristotle's Nichomachean Ethics represents a certain set of ideas--some of those of Aristotle about ethics--but it in no way represents ideas in general or books in general.

I have to say that, despite being raised in a mostly Christian environment, I have never, ever--not even once in my entire life--thought of the Ten Commandments or representations thereof as a representation of law per se. The Ten Commandments are a very specific set of laws, not law in general. In fact, I very much doubt that anyone—Christian or non-Christian—has ever actually thought of the Ten Commandments as a representation of law per se. It is simply not true that the Ten Commandments have any such representative function.

So, it does not seem that the Ten Commandments represent law per se at all. If they do so, however, there are other equally apt representations, and ones that do not in any way threaten to violate the separation of church and state. Consequently it is those other alleged represenations of law that should be used in American courtrooms if any are. If the Ten Commandments represent law at all, they also represent Christianity and Christian concepts of law and the authority of law, and, consequently, they are uniquely unsuited to represent law per se in American courthouses.