[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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