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,
Paul Horwitz
University of Alabama School of Law
On Mar 3, 2012, at 5:41 PM, "Volokh, Eugene" <vol...@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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