Res judicata is Latin for a matter that’s already been decided. Here’s one: It’s a res judicata that no conversation, including this one, can get off the ground unless some things are taken to be a res judicata. Like what? Well, like that these chicken scratches represent words, which strung together constitutes sentences, which strung together are intended to convey meaning. If that’s not a res judicata, then for goodness sake stop reading.
A res judicata is not the same as something that’s self-evident. I tell my students that Philosophy is that discipline in which nothing is taken to be self-evident. But self-evident is a term in epistemology. It’s self-evident, thought Descartes, that thought entails a thinker. But Hume challenged that claim. By contrast, that something is a res judicata is simply an agreed upon constraint on a conversation we’re about to have. It’s our “On the assumption that x, which we’re assuming only for the sake and duration of this conversation …” We may backtrack and question that assumption at another time and place, but not here and now. For the here and now what’s our res judicata defines what’s within our problem space and what’s outside of it. But as I say, only for the here and now.
We’re not always – in fact we’re seldom – consciously aware of what we’re both taking as a res judicata, but if in doubt a moment’s reflection will reveal it to us. For example, in the apprehension, trial, and imprisonment of a criminal, we’re assuming – and we’re assuming he’s assuming – that we’re in a state of civil society, not war. That’s not something people automatically think about when they think about criminality. But the Bobby Sands case forced the British people to think about it. Sands’ demand to be treated as a POW rendered what had been a res judicata a res judicata no longer. So the British occupier and the Irish resistance had to settle on something they both could take as a res judicata that would make possible a conversation about Sands’ status. They never did find that something, and so the issue remains open to this day.
So sometimes, to help us understand what’s going on in the world, it pays to think about what we haven’t been thinking about because we’ve been assuming everyone’s been assuming the same thing. For example, North Korea doesn’t consider itself subject to UN resolutions any more than Bobby Sands considered himself subject to British law. So if the Americans and North Koreans are ever going to enter into a conversation about that country’s nuclear weapons program, any assumption about the UN’s jurisdiction in the matter is going to have to either become shared or else dropped.
Sometimes people boldfacedly lie about what they’re taking to be a res judicata. AGW asserters are notorious, not to mention just a tad risible, for first declaring there’s no debate about AGW and then proceeding to vigorously debate it. This needn’t surprise us. Rhetoricians for this or for that are almost invariably loath to open their argument with, “On the assumption that …”, because they think that takes the wind out of their sails by giving their interlocutors an opening to question that argument-enabling assumption.
And they’re right. Imagine a priest opening his homily with, “Assuming that there really is a God …” or, “On the assumption that the tomb really was empty …”. I’m guessing his bishop will be sending him back to seminary for a refresher course on how not to preach the Gospel.
For theists talking to theists, the existence of God is a res judicata, as is the Empty Tomb for Christians, the Abrahamic Covenant for Jews, and so on. Which, as I’ve said, is not to say that a theist can’t question the existence of God, or a Christian the historicity of the Empty Tomb, or a Jew the historicity of the Abrahamic Covenant, at some other time and place. “To every thing there is a season, and a time for every purpose under heaven.” But his funeral is not the time to recount what a bastard the deceased was.
Most of us would have thought that’s a res judicata. But apparently not the Westboro Baptist Church, who are infamous for, among other things, picketing the funerals of homosexuals with signs reading “GOD HATES FAGS”.
Because Jurgen Habermas was a Continental philosopher, I’m not allowed to have read him. So I’ll just say that I hear tell that it was in response to problems like the Westboro Baptist Church that Habermas set himself to task on (something he called) a dialogical ethics, by which he meant the rules that have to be mutually agreed upon and adhered to if anything approaching a useful dialogue is to take place. To what he said – sorry, to what I’m told he said – would have to be added such obvious constraints as the rules of logic, without which we get (what logicians call) inferential detonation, the stability of the meaning of words, without which we get equivocation, and so on. So civility, syntax, semantics, and so on, are all res judicata.
Which, to repeat, does not mean we couldn’t at another time and place decide we should forego that dialogue-enabling civility. Maybe bigots just aren’t worth talking to. For that matter we might decide to eschew the rues of inference. Maybe our own hoi polloi – not unlike the hoi polloi being ‘radicalized’ by the evil Islamicists – are stupid enough to buy an argument ad populum or ad hominem, and all we really care about is getting them on side.
This is the tactic some of my colleagues have adopted vis a vis AGW assertion. I have no problem with either so-called radical Islamic terrorists or AGW asserter never-called zombies. I’m not sure about love, but certainly all’s fair in war, and for sure Palestine and AGW are both war zones. But let’s set the ethics of war aside for the time being and confine ourselves to issues which are, at least for now, touch wood, still under the constraints of civility.
Much of many debates – no, make that the entirety of many debates – is rightly described as two ships passing in the night. The two sides are just not making explicit what each is taking to be the res judicata prerequisite to a meaningful exchange of ideas on the subject. Even assuming George Bush was right – that we’re either with the terrorists or against them – you can’t assume I’m against them and then expect me to join in on a conversation about how to discourage radicalization. Even assuming we’re either outraged by pedophiles or sympathetic to them, you can’t assume I’m outraged by them and then expect me to join in on your deliberations about whether they should be killed or just castrated.
More often than not making explicit what we take to be a res judicata among our interlocutors just seems silly. Does a waiter really have to check to see if you want something to eat before asking what he can get for you? So how do we avoid such silliness but at the same time ensure that we haven’t spent an hour discussing financing options when you just came into the dealership to use the washroom?
In most cases the gestalt should be a dead giveaway. If you’re seated at the table and looking at the menu, chances are you’d like something from the kitchen. But if you’re sitting next to me on a plane from Rome to Paris, you’re wearing your Hassidic hat and your tefillin and you’re dovening, and you notice the Mogen David around my neck, you might, you just might, want to stop and find a way to check before leaning over and whispering, in a conspiratorial tone and twinkle in your eye, assuring me that – and I quote – “You know, when we finish building the wall, the killing starts in earnest.”
That one made my skin crawl. Your dumb-fuck talk of terrorists just gets my back up. And your assumption that pedophiles must be sick I just chalk up to your never having thought much about how sexuality actually works. The problem is it’s hard to find a diplomatic way to alert you to the fact that our res judicata may not be in sync.
What I should have said – and isn’t it always what I should have said?! – was something like, “Oh, I see. You must have thought I’m Jewish. Actually I’m Palestinian. I just wear this star thing as a trophy. I took it off the body of some young Jew girl I raped last week. I took pictures. Wanna see?”
Why do we always think of what we should have said when it’s too late?!