[lit-ideas] Re: The Philosophy of Law

  • From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Mon, 9 Mar 2015 07:25:00 -0400

We are considering a case mentioned by O. K. about the alleged reason the  
shooter may have had to _fear_ -- re: the alleged legitimate  self-defense.

I was particularly interested in the use of 'reason' vs. 'cause.
 
The passage by O. K. is requoted by McEvoy:
 
"The legal dispute however revolved about whether [the man who shot the  
two  
other men] he had reason to fear those guys."
 
and he quotes what McEvoy refers to as a bromide (echoing Poincaré),
 
 
"Ça, c'est onceptuel.
 
which Poincaré was obviously borrowing from Cole Porter's song, "Ça, c'est  
l'amour" 

In a message dated 3/9/2015 6:29:34 A.M. Eastern Daylight Time,  
Jlsperanza@xxxxxxx writes:
There is mere assertion here - "This is  conceptual". There is no argument 
here that shows that the "legal dispute"  hinges not on any "conceptual 
element" [though admittedly a "conceptual element"  of sorts is used in framing 
the legal dispute] but on a "question of fact" -  i.e. whether he had 
sufficient "reason to fear those guys" in the sense of  apprehending an 
impending 
attack to which he was entitled to respond with  pre-emptive force. My 
previous post made clear that there is no "conceptual  analysis" that answers 
this question of fact: it is a substantive question of  fact to be resolved by 
a substantive judgment and not a question to be resolved  by analysis of the 
meaning of the concepts involved. That is why persons can  disagree on 
whether there was self-defence even though they do not disagree on  the meaning 
of the concepts involved (at least in one sense of the meaning of  
"meaning"); and I suggest it is just as much a mistake to try to shoehorn this  
kind 
of substantive disagreement into the box marked "This is conceptual" as it  
would be an error to treat "E = mc2" as something whose truth or validity is 
 determined in terms of its merely conceptual elements.In the philosophy of 
 science, this error is propounded by conventionalists like Poincaré..."
 
Well, again, then, my focus nwas not so much on 'self-defense' and how  
legitimate can be (unless it relies on a definition as per legal rule) but on  
the rather circumstantial use of 'reason' -- hence my reference to [THIS  
PHILOSOPHER I LIKE]. As early as 1948, before Davidson had brought all this to 
 the forum (in "Actions, Reasons, and Causes" essay for the Journal of  
Philosophy, vol. 60 -- Davidson's contribution to a symposium).
 
[THIS PHILOSOPHER I LIKE] writes about the ordinary-language use of  
'reason' (as it contrasts with 'cause' -- and it is noticeable that the issue  
was 
taken by Hart/Honoré, because they favoured writing a book on causation in  
the law rather than on reason in the law, which perhaps was less  relevant).
 
[THIS PHILOSOPHER I LIKE] writes back in 1948 (Hart will have  occasion to 
quote him for the PHILOSOPHICAL QUARTERLY in 1952, "Signs and  words", being 
Hart's review of Holloway's simplistic "Language and  Intelligence"):
 
"Will any kind of intended effect do, or may there be cases where an effect 
 is intended (with the required qualifications) and yet we should not want 
to  talk of meaning?"
 
"Suppose I discovered some person so constituted that, when I told him that 
 whenever I grunted in a special way I wanted him to blush or to incur some 
 physical malady, thereafter whenever he recognized the grunt (and with it 
my  intention), he did blush or incur the malady." 
 
"Should we then want to say that the grunt meant something?"
 
"I do not think so."
 
"This points to the fact that for x to have meaning, the intended effect  
must be something which in some sense is within the control of the audience, 
or  that in some sense of "reason" the recognition of the intention behind x 
is for  the audience a reason and not merely a cause."
 
THE KEYWORD HERE IS "CAUSE" as in Grice's provocative "not merely a cause"  
-- which is an interesting adverb that McEvoy had used previously, and on 
which  Omar makes interesting remarks. In this case, Grice is implicating (or 
 explicitly communicating by via of entailment, if you must) that a reason 
IS a  cause -- but the reverse does not hold -- a cause is not necessarily a 
 reason).
 
[THIS PHILOSOPHER I LIKE CONTINUES]:

"It might look as if there is a sort of pun here ("reason for believing"  
and "reason for doing"), but I do not think this is serious."
 
"For though no doubt from one point of view questions about reasons for  
believing are questions about evidence and so quite different from questions  
about reasons for doing, nevertheless to recognise an utterer's
intention in  uttering x (descriptive utterance), to have a reason for 
believing that  so-and-so, is at least quite like "having a motive for" 
accepting  so-and-so."
 
"... is at least quite like..."
 
may still not be "... is identical with... "
 
[THIS PHILOSOPHER I LIKE GOES ON:

"Decisions "that" seem to involve  decisions "to" (and this is why we can 
"refuse to believe" and
also be  "compelled to believe""
 
THE KEYWORD here would be: 'compelled to fear', or 'refuse to fear',  
because the alleged case of self-defense trades on the idea of 'fear'.
 
[THE PHILOSOPHER I LIKE GOES ON to refer to a case of someone cutting  
someone else in the street:
 
"If I cut someone in the street I do feel inclined to assimilate this to  
the cases of meaning, and this inclination seems to me dependent on the fact  
that I could not reasonably expect him to be distressed (indignant, 
humiliated)  unless he recognized my intention to affect him in this way."
 
"This "cutting" case needs slightly different treatment now, for one cannot 
 in any straightforward sense "decide" to be offended."
 
Here the keyword is on 'DECISION' as based on 'reason' rather than 'cause'. 
 One cannot decide to be offended because being offended is caused by the  
offensive or offending behaviour. But the person who gets offended, in no  
'straightforward case' DECIDES to be offended.
 
"One can REFUSE to be offended, though."
 
by ignoring the causes, I expect.
 
"It looks then as if the intended effect must be something within the  
control of the audience, or at least the sort of thing which is within its  
control."
 
WHICH does NOT seem to be the case with the keyword to hand here: FEAR  
behind a defense of legitimate self-defense.
 
It may do to compare Hart to Poincaré.
 
Poincaré writes:
 
"When a law [cfr. Hart on 'law' and 'legal rules'] has received a  
sufficient confirmation from experiment, we may adopt two attitudes: either we  
may 
leave this law in the fray; it will then remain subject to incessant  
revision, which without any doubt will end by demonstrating that it is only  
approximate; or else we may elevate it into a principle by adopting  
conventions."
 
(Poincaré 1905b: 165–166; 1913b: 335) 
 
The analogy in Hart is that a legal rule, while founded on some  pre-legal 
state of affair, becomes conventional in that a mere external attitude  
towards it is always possible ("It is not conventional among non-cannibalistic  
societies to eat people" -- "Eating people is conventionally wrong in these  
societies").
 
In physics, the conventions are convenient even with respect to physical  
objects (Poincaré 1902: 152; 1913b: 125).
 
Just as the law of displacements may correspond only approximately to the  
law of groups and is consequently considered to be the result of two 
component  changes, the first being a displacement, and the second a 
qualitative  
alteration, so Poincaré regards the physical complex relation between two 
bodies 
 
A 
 
and 
 
B 
 
in Poincaré's formula below, as the result of two components. 
 
The first is regarded as a “simple” geometrical (mathematical, and thus  
analytical) principle, while the second is itself composed of what Poincaré  
calls two “epistemological laws.” 
 
The physical bodies A and B are thus related to  mere geometrical figures A′
; and B′ of the geometrical space so  that
 
R(A,B) ↔ R′(A′,B′) ∧ rA(A,A′) ∧ rB(B,B′) 
 
where 
 
R′ 
 
is a “properly” geometrical proposition, and the 
 
"r" 
 
-- rA and rB -- 
 
express the relationships between objects of the representative space and  
the geometrical space, such as the relation between solid bodies and motion  
invariants. 
 
Poincaré declares that by changing the relations 
 
"r"
 
i.e. rA and rB --
 
the geometrical proposition R′(A′, B′) could even serve to describe the  
relationship between two different physical bodies (see Poincaré 1905b: 166–
67;  1913b: 336). 
 
The conventional elements in physical theories were often misunderstood by  
Poincaré's contemporaries. 
 
His affirmation that neither of the two propositions 
 
i. The earth turns round.
 
and its negation
 
ii. The earth does not turn round.
 
is "more true than the other in the kinematic sense". 
 
This is NOT a rehabilitation of Ptolemy's system, but the consequence of  
the fact that in physics, the empirical systematic (not epistemic)  
under-determination of theories is limited by unifying considerations.
 
As Poincaré notes:
 
"A physical theory is by so much the more true, as it puts in evidence more 
 true relations."
 
So, the 
 
i. The earth turns round.
 
has a richer content expressed by 
 
"the flattening of the earth, the rotation of Foucault's pendulum, the  
gyration of cyclones, the trade-winds, and who knows what else?”"
 
(Poincaré 1905b: 184–85; 1913b: 353). 
 
In physics proper—that is, in optics and in electrodynamics—the  
conventional elements are still there:
 
Poincaré writes:

"We meet another sort of hypotheses […] Without  doubt, at first blush, the 
theories seem to us fragile, and the history of  science proves to us how 
ephemeral they are; yet they do not entirely perish,  and of each of them 
something remains. It is these something we must seek to  disentangle, since 
there, and there alone is the veritable reality."
 (Poincaré 1902: 26; 1913b: 29–30).
 
In fact, Poincaré's model of explanation, founded on a minimum of  
well-confirmed hypotheses erected into principles and from which any meaningful 
 
propositions can be deduced, is called into question by Maxwell's approach. 
 
Interstingly, Poincaré and Einstein did not cite each other.
 
This despite the fact that Einstein read Poincaré's Science and Hypothesis  
before 1905 and Poincaré wrote Einstein a recommendation letter sometime 
after  their only meeting at the first Solvay Congress in 1911 (Walter 2007: 
chap.  59.3). 
 
So, what were the causes (if not reasons) for Einstein's behaviour?
 
Poincaré, himself a physician, besides a philosopher, discovered  salient 
points of the special theory of relativity, such as an operational  
definition of clock-synchronization to first order in v/c, and a relativistic  
formula of the composition of speed, the determination of the structure of the  
Lorentz-group.
 
Using in his famous St. Louis lecture of 1904 the designation (physical)  “
principle of relativity” (Poincaré 1905a: 607), which does not apply “to 
finite  equations that are directly observed, but to differential equations” 
(Poincaré  1913a: 103; 1963: 19), Poincaré reports that Lorentz introduces 
the conjectures  (i.e., the ad hoc hypotheses) of “local time” and of “
uniform contraction in the  direction of motion” in an attempt to save the 
principle in its application to  the electromagnetic domain (see Poincaré 
1905b: 
132 ff.; 1913b: 305 ff.). 
 
It was indeed Poincaré (1906) who made Lorentz's theory fully compatible  
with the relativity principle. 
 
We are thus naturally inclined, remarks Poincaré, to admit the postulate of 
 relativity in every domain. In postulating the principle as a “general law 
of  Nature” (Poincaré 1906: 495), its extended form finds its origin in the 
Galilean  principle, and its motivation in its compatibility with a theory 
explaining why  no experiment is able to inform us of the earth's motion 
relative to the ether. 
 
So, the principle is an element of a work in progress containing several  
conjectures and there is the possibility that it will lose its soundness  
(Poincaré 1905b: 146; 1913b: 319).
 
Poincaré's old conventional construction of space where he prefers  
Euclidean geometry on the basis of considerations of simplicity and commodity  
must 
be subsumed to a new convention on space-time. 
 
Indeed, Poincaré never abandons Galilean space-time but it is not even  
clear if before 1912 the principle of special relativity with Lorentz  
co-variance (instead with Galilean co-variance) was enough well-confirmed to be 
 
unassailable by experiment and to make the principle with Galilean co-variance  
unfruitful.
 
Perhaps part of the problem is Russellian (that [THIS PHILOSOPHER I LIKE]  
worshipped, for we may distinguish, to echo McEvoy between:

E = mc2
 
and 
 
E =df mc2
 
This is still different of course from [THIS PHILOSOPHER I LIKE] and his  
use of 
 
"iff" 
 
for a proper analysis has to provide sufficient AND necessary conditions  
for propositions, whereas " = " and " =df" (unless we adopt a meta-language 
that  Hart feared*) applies to nominal elements within the propositions.
 
Cheers,
 
Speranza
 
* Hart (Letter to Isaiah Berlin):

"Dear Isaiah,
Thank you for your letter. You wonder why I panic, why I terrify, what I  
fear.
 
What I am tremendously doubtful about is the adequacy of my abilities and  
the strength of my interest in the subject.
 
My greatest misgiving (amongst many) is about the whole linguistic approach 
 to logic, meaning, semantics,
meta-languages, and object-languages. 
 
At present my (necessarily intermittent) attempts to understand this point  
of view only engender panic and despair but I dimly hope that I cannot be  
incapable given time of understanding it. 
 
The solution or dissolution of philosophical problems in this medium is  
however at present incomprehensible yet terrifying to me. 
 
My main fear is that it is the fineness and accuracy of this linguistic  
approach which escapes my crude and conventional grasp and that it may be very 
 difficult at my age to adjust one’s telescope to the right  focus.
 
As a result of this I have pictures of myself as a stale mumbler of the  
inherited doctrine, not knowing the language used by my contemporaries (much  
younger**) and unable to learn it."
 
"I will give your regards to my wife."
 
"Love".
 
----
 
** (Obvious reference to H. P. Grice, b. 1913). The good thing is that he  
overcame his fears and Grice came to love him.
 
 
 
 

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