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Mental reservations, tacit ventures

June 22, 2015

[A follow-up to Render unto Caesar. Happily coinciding with the feast of Sts. John Fisher and Thomas More.]

Let’s consider another example of religio-political equivocation. In Tudor England, Bishop John Fisher preached publicly against Henry VIII’s “marriage” to Anne Boleyn. Chancellor Thomas More did not; he merely resigned, and refused to take an oath affirming the reality of the “marriage.” Both were convicted of treason, and beheaded.

More’s refusal walked a fine line between the taxpayer and the incense-burner (cf. previous post). He did not intend to affirm the substance of the oath, which would have been an act of apostasy. He did, however, foresee, or thought he foresaw, that his silence would be seen as an acceptance of that substance, namely, that Anne Boleyn’s children would be heir to the throne. He thought he could foresee this because of a legal principle he cites, qui tacet consentire videtur, “he who is silent is seen to consent.”

This strategy ought to have worked; it did not, only because the Crown produced Richard Rich as a witness, claiming (somewhat improbably) to have heard More deny the proposition. But the reason the strategy should have worked is not that legal principles are somehow “fictional,” such that he was giving fictional, legal assent to the proposition, but not “actual” assent. Language is conventional, and legal principles are among those conventions, and if the legal principle had been qui tacet assentit, “he who is silent, assents,” More’s defense would have been nonsense. Instead, the legal principle itself makes room for, indeed codifies, an equivocation, allowing More reliably to mislead his auditors, without lying to them.

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More’s equivocation is both an examplary instance, and a limit case, of mental reservation. Now, in mental reservation, a person makes a statement that can be interpreted two ways, and intend to speak truly, while intending also that the auditor misinterprets him. Mental reservation is often said to be justified through the principle of double effect, but it’s far from clear how that argument is supposed to run.[1]

His mental reservation is illustrative because his ambiguity is not in the words he speaks (he speaks no words), but in the conventions surrounding his silence: he does not intend to signal assent, but can still be seen as consenting. This brings out equivocation’s apparently absurd quality of linguistic tyranny: More is like a mute Humpty Dumpty, his silence meaning just what he means for it to mean, “neither more nor less.”

Yet More’s is also a limit case, for mental reservation is usually intended to pass unnoticed by the auditor. If it’s noticed, after all, how can it be misinterpreted? More, however, not only fails to avoid discovery, but positively calls attention to his reservations. This difference means that, unlike other exemplary equivocations, like Athanasius’s “He is close to you,”[2] the moral argument in favor of More’s is quite straightforward and unobjectionable.

*

To wit:

The legal principle More cites is often expanded ubi loqui debuit ac potuit, meaning “when he ought to have spoken and was able to.” The purpose of this qualification is simple: someone keeping silent at the scene of a crime might be either an enthusiastic accomplice or a horrified onlooker. If he was able to object to the crime and did not, that is enough to indict him as an accomplice, even if there’s no record of him endorsing the crime—unless he could not speak without fearing for his safety, in which case it’s likely that he was an onlooker instead. If the Crown had taken this into account, it could have recognized that More had not, in fact, meant to give his assent; but it could not have made this recognition without also recognizing its own criminality.

The structure of More’s utterance, then, is less like an action undertaken despite having certain unfortunate accidental side effects, and more like a riddle which cannot be understood by men of ill will. I don’t mean that More outwitted his enemies, that the Crown was too thickheaded to understand what he really meant; More obviously expected them to know exactly what he was trying to do. Rather, given More’s silence, and given the principle qui tacet consentire videtur, ubi loqui debuit ac potuit, the Crown could not conclude that he withheld assent without also concluding that his inability to speak stemmed from the Crown’s violent threats. The Crown might know this, but it could never admit it. More utterance was meant to render this forbidden knowledge perspicuous.

This makes More’s silence less like a mental reservation, and more like a risky venture: if he wins, he brings his auditor to repent. If he loses, either his auditor lashes out, and he becomes a martyr; or his auditor overlooks the venture, and he becomes a liar, or, at least, an equivocator of the usual kind. Without going into whether the usual kind can be justified, it seems clear to me that the Morean kind certainly can.

 

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[1]:  The mental reservationist intends to speak the truth, and foresees… what exactly? What he foresees without intending cannot quite be the misinterpretation, for the misinterpretation is, it would seem, precisely what he intends. If this were true, then, to justify mental reservation through double effect, we would have to accept that misleading others was not evil per se, but only tended to have evil consequences, which were foreseen yet unintended. Yet there must be, or at least tend to be, evil consequences, otherwise there would be no reason not to use mental reservation all the time. What might these accidental evil consequences be? This question is often left unasked, which I suspect accounts for much of the disgust non-Catholics often feel in response to the doctrine of mental reservation. Without a reason not to equivocate unless absolutely necessary, one suspects that anyone who endorses equivocation can never be trusted, since they might equivocate whenever convenient. I don’t mean to suggest that an answer cannot be given—only that it’s not particularly easy to give one that’s satisfying.

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[2]: From John Henry Newman’s Apologia pro vita sua:

He [Athanasius] was in a boat on the Nile, flying persecution; and he found himself pursued. On this he ordered his men to turn his boat round, and ran right to meet the satellites of Julian. They asked him, “Have you seen Athanasius?” and he told his followers to answer, “Yes, he is close to you.” They went on their course as if they were sure to come up to him, while he ran back into Alexandria, and there lay hid till the end of the persecution.

“Yes, he is close to you,” contains no riddle as far as I can tell. Newman’s Apologia offers a tentative defense of equivocation, which I ought to reread, when I get the chance. From what I recall, however, his argument works better as a defense of analogizing (which is to speak approximately) rather than equivocating (which is to speak misleadingly).

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