Corrupt Hive

In stecore invenitur

The Context of Language

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Collin Miller and I had a little exchange over at EvidenceProgBlog about the nature of the proper test regarding when the “ministerial exception” ends. The New Jersey Appellate Court, in line with several other courts, ruled that the ministerial exception to criminal confessions ends when the minsters says that he or she is no longer able to counsel the individual. Collin agrees with the court; I do not. I believe that the cases that have been decided this way are not sensitive enough to the context in which words are spoken. The time, the place, the mood, and other environmental factors all help the individual determine the meaning and intention of the spoken word. No certainly means no, but “no” to what exactly? For how long? In what place?

In this case, it is obvious that two different conversations operated in entirely different contexts. The conversations took place at entirely different times, took place in entirely different locations, were initiated by two different people, and were initiated for two different purposes. To hold that the minister’s “no” in conversation one legally eviscerates conversation two is to fetishize words. It turns the “no” into an eternal, omnipresent incantation which has no concern for anything but itself. The current legal test is a little bit like saying that when your wife says she doesn’t want milk for dinner, that means she never wants milk forever. God help the man who takes that approach to his marriage.

Our disagreement is eerily reflective of the debate between Justice Learned Hand and Justice Oliver Wendell Holmes, Jr. that Louis Menand chronicles on page 417 of The Metaphysical Club. Their difference is over the Debs case and the nature of freedom of expression. Hand wants a test that is language sensitive and says that the words themselves must be a direct incitement to treason. Holmes, wisely in my opinion, rejects this test and says that the issue is whether the words present a “clear and present danger” to the nation. It’s context that matters. Each of the two men are being entirely “reasonable” but each of them has a different definition of reasonable speech.

In truth, I reject a simplified language vs context dichotomy; the two work hand in hand. Words help my mind to understand the context and context helps my mind to understand the meaning and purpose of words I hear. In the New Jersey case, the first conversation was initiated by the minister, took place at the penitents home, and the minister ended the conversation by suggesting the penitent seek professional psychological help. It is highly dubious from this context that an ordinary person would conclude that minister’s refusal to counsel and referral to someone else was a refusal so definite and so final that the entire relationship between the penitent and his confessor for all purposes was ended. Indeed, the actual context of the second conversation (it took place in the confessor’s church while he was seeking to be baptized) make it obvious, to me anyway, that (1) the penitent himself did not believe that the confessional relationship had ended and (2) that he believed he was engaging in an act of spiritual confession. Thus, his conversation should have been legally protected and inadmissible in court.


Written by Daniel

August 31, 2008 at 3:33 pm

Posted in Uncategorized

One Response

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  1. […] adviser” and with the intention of that communication being confidential. Unlike the case I blogged about below, this decision turns not on whether the person was acting in the capacity of a spiritual adviser […]

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