Basketball tournaments on the Sabbath
VOLOKH at law.ucla.edu
Sun Mar 4 14:23:52 PST 2012
I agree with Paul's point, and realize that I should make my statement more precise. Common sense tells us there is real value to following rules with a minimum number of exceptions, and especially exceptions that are limited to truly extraordinary situations. Indeed, if a tornado knocks out the arena where a game is to be played, you can't very well play the game that day. Likewise, if one of the tournament teams' buses crashes the day before, and most of the team is killed, it makes sense that all the other teams might postpone their games out of grief and respect for the dead.
But common sense tells us that there is still value for reserving exceptions for such extraordinary cases. Now, as I said, there is also value for allowing exceptions even outside extraordinary cases; it may well be that an exception ought to be made. My point -- on which Paul and I agree -- is simply that common sense doesn't generally resolve this sort of tension.
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Paul Horwitz [phorwitz at hotmail.com]
Sent: Saturday, March 03, 2012 7:42 PM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath
I agree generally with Eugene's point--which I would generalize to just about every situation--that "common sense," like many other such phrases (certainly including "respect," or "the rule of law") is too capacious a term to resolve most disputes. In this case, one would have to both understand and expand the context sufficiently to help one reach a reasonable resolution of the dispute, and even then there would be more than one such resolution. In this case, it seems to me that the road to a reasonable resolution of the problem lies in the fact that TAPPS opened itself to a situation in which it welcomed the possibility of sporting events involving others whose religious needs might require accommodation. If the league had remained solely devoted to Christian schools and, in effect, had valued Christian community over sports or all-state intramural play itself, then refusing to change its schedule would a) be reasonable and b) not be much of a problem, since the issue would be unlikely ever to arise. Once it took the step of opening play to non-Christians, however, including those with an equally thick set of religious commitments, then common sense, if not simply being a good host, would suggest that the league ought to anticipate and accommodate the religious needs of its guests. But certainly the work here is not done by invoking "common sense" alone.
I do, though, think it's worth taking slight issue with the view that common sense "tells us that there is real value to following rules with no exceptions." I appreciate that this phrase leaves open room for ambiguity and charitable interpretation; not least, Eugene says "real value," not "absolute value." But I still think its worth emphasizing that I can think of few if any conditions in which a regime intended for application to human affairs would common-sensically lead to a belief in following rules with no exceptions -- except perhaps, in situations where the rules themselves are already drawn up in such a way that the exceptions are either implicit or explicit. Of course, it is indeed true of rules generally that they contain explicit or implicit exceptions. Even Smith, read common-sensically, is not a rule meant to be followed with no exceptions: it contains both implicit and explicit exceptions. Even the military, a realm in which more people would be likely to agree that rules should be followed with not exceptions, either tailors its rules carefully so that they already contain exceptions or, in some quite crucial cases, insists that there are situations where one must disobey a command.
I appreciate that it was just a minor point along the way to a broader conclusion that I generally share. Still, at least in an audience of lawyers, I think it is always worth emphasizing that no sound system of rules could possibly insist on complete obedience, and that any understanding of the rule of law that does not make allowance, either implicitly or explicitly, for ignoring, avoiding, disobeying, or violating rules resembles madness more closely than it does common sense.
Best to all,
University of Alabama School of Law
On Mar 3, 2012, at 5:41 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
The trouble with “common sense” is that it often points in different directions. Common sense tells us there is real value to following rules with no exceptions, so that one doesn’t have to later deal with questions of “you accommodated them, why don’t you accommodate” us (even when the future request for accommodation might be different from the current one), and also to having a schedule that is predictable, especially given that team members and others related to the team may often plan their schedules around the preannounced playing schedule. Common sense also tells us that there is real value to being flexible,
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