Ciceronian Review

Will

About a week ago reading the NYT blog on philosophy, the writer spent some time explaining how the universe is not deterministic.  The discussion of whether the universe was deterministic was part of an argument that free will was possible (well, I think the ultimate conclusion was for more than mere possibility).  I am lost about why it would matter to free will if the universe was deterministic or not.  In the first place, the basic problem of free will is the second, not the first, term.  What is a 'will' and how does it cause things to happen?  Unless one is an idealist of some kind, it is very hard to know what is being talked about.  Determinist universe is a problem for the 'free' part, not fatal.  It is the will part that is a real block.  It can't be an experience, because, whatever the status of experiences, they are not causally effective.  Anyway, for medium size objects, it is a bit hard to find the non-deterministic world the writer wants.  Putting a pan of water over an open flame will not freeze it, whatever is going on at the quantum level.  So we make choices -- that is not free will.  To make the economy work well, people act as if what happens is reward of merit (some combination of diligence, good ideas, etc.).  Pretty clear from history that the view is false.    

 One of the reasons I've Kant to be pernicious is because the theories he offers are, in the end, solipsistic idealism (not sure there is any other sort in the end).     

Living on Music

How to Live on Bread and Music is a quite good collection of poetry.  Perhaps 5 weak pieces, or pieces not as good as the rest.  The book as a whole is interesting.  The language, as expected, is interesting.  More importantly, the poems give one something to think about.  Not just a collection of images or psuedo-profundities.  I would not describe them as modest, but also not a bravura showing of erudition or he muck of fake philosophy.  Insightful and lovely.  I would like to be able to say I knew what I was getting, but that is not right.  The book won an award and showed up in the mail -- Laughlin award I think.   It is not the revelations the Anne Stevenson collection was, but this is a good book and the poet one to follow.

Thank you Ms. Sweeney.  And Perugia Press -- the book is well made and lovely to the touch. 

Realism Again

Interesting comment here regarding the relationship of Legal Realism and Positivism.  The gist is that Realism is a solution to the problem within Positivism that decisions are not determined by legal sources, i.e., by law.  For example, the law (statutes and cases, say) do not determine a single right outcome to an appeal.  Realism tells us ow the surrounding background information or conditions lead to a decision.  

I think that is not unreasonable, but I also think it is not quite on the point.  The point is that the Realist has to have an account of law in order to identify the indeterminacy.  It is a theory about law and legal decisions, so there should be a story about what that (law and legal decisions) is.  The theory which best frames the Legal Realist's substantive analysis of indeterminacy is Positivism.  It identifies the law through sources, and so doing puts in place a set of sources which will limit but not determine outcomes.  One will be able to identify what a legal dispute is and what sources apply to it as legal, and how they will not yield a single determinate answer.  Then up step LR who points to certain background social conditions and influences of the individual decision makers which, together with the legal sources, does yield a determinate outcome.  

One place there is friction in this analysis is that the Realist addition is about decisions in legal disputes, that is to say, about the grounds for the decision which then is (or may be) properly law thereafter.  Yet the basis for the decision is not such that it could provide any justification to the decision.  (Explaining is not justifying, after all.)  The dominant accounts of the authority of law would seem to fit uneasily with this story.  For authority to unaffected by the fact that a decision is ultimately driven by class interest would require (I think, not certain) that authority flow from office alone.  I think that is implausible.  So the upshot is that a Legal Realist account of decision-making is destructive of the legal theory on which it relies.  I don't think this is self-contradiction, but more in the way of an uncomfortable oddity.   

Realism Again

Interesting comment here regarding the relationship of Legal Realism and Positivism.  The gist is that Realism is a solution to the problem within Positivism that decisions are not determined by legal sources, i.e., by law.  For example, the law (statutes and cases, say) do not determine a single right outcome to an appeal.  Realism tells us ow the surrounding background information or conditions lead to a decision.  

I think that is not unreasonable, but I also think it is not quite on the point.  The point is that the Realist has to have an account of law in order to identify the indeterminacy.  It is a theory about law and legal decisions, so there should be a story about what that (law and legal decisions) is.  The theory which best frames the Legal Realist's substantive analysis of indeterminacy is Positivism.  It identifies the law through sources, and so doing puts in place a set of sources which will limit but not determine outcomes.  One will be able to identify what a legal dispute is and what sources apply to it as legal, and how they will not yield a single determinate answer.  Then up step LR who points to certain background social conditions and influences of the individual decision makers which, together with the legal sources, does yield a determinate outcome.  

One place there is friction in this analysis is that the Realist addition is about decisions in legal disputes, that is to say, about the grounds for the decision which then is (or may be) properly law thereafter.  Yet the basis for the decision is not such that it could provide any justification to the decision.  (Explaining is not justifying, after all.)  The dominant accounts of the authority of law would seem to fit uneasily with this story.  For authority to unaffected by the fact that a decision is ultimately driven by class interest would require (I think, not certain) that authority flow from office alone.  I think that is implausible.  So the upshot is that a Legal Realist account of decision-making is destructive of the legal theory on which it relies.  I don't think this is self-contradiction, but more in the way of an uncomfortable oddity.   

All That Is Sacred

I wonder if all of the land at the end of Manhattan is now sacred.  If it is too hallowed some blocks from World Trade Center to be building cultural centers, is it also too hallowed for pizzerias, falafels, suits, drug stores, etc.?  I wonder why there is no objection to falafel stands, or the other mosques in the area?  It would be nice to have an explanation that did not entail collective guilt, but I am having difficulty finding it.   

The analogies are a bit off -- Islam did not attack the US, so the Pearl Harbor analogy is off (Japan did attack).  But I don't suppose reason really matters  here.  

More On the Little Country

Estonia was part of the Swedish Empire from about 1500 to 1700, when it was handed to the Russian Empire.  It seceded from the Russian Empire when the Empire itself collapsed, and was an independent state from about 1920 to 1939.  From post-war to about 1991, it was part of the USSR.  A troubled history, and subject to the many afflictions all those within the USSR suffered.  No doubt the Soviet state mistreated Estonia and Estonians (e.g., massive deportations, etc.).  None of that is in dispute.  My point was not that Estonia should take an uncritical attitude towards Russia.  It was that, first, the history does not justify what amount to racist citizenship laws.  People who entered the country legally, were born to legal residents (indeed, citizens), grew up in the place are denied citizenship -- with consequent discrimination in a host of areas of life -- because they don't speak Estonian and because their family wasn't there 100 years ago.  There is no justification for such treatment, and, separately, it is motivated by animus and ethnic nationalism.  Second, part of the general policy has been the actions of the Estonian government with respect to its own history.  It has turned anti-Soviet sentiment into a kind of excuse for mistreating Russians.  Third, the removal of the War Memorial is shocking.  The idea that Estonia would have been better off under a Nazi state is hard to take seriously.  There would have been no Jews anywhere in the country, and rather fewer Estonians for that matter (Estonians aren't Aryan after all).  The victory over the Nazis is very important to the existence of the European nations, including Estonia.  The victory owes a great deal to the Red Army -- that is not in doubt.  Memorials to the war and victory really seem to be proper.  Moving the Memorial from a central location to a cemetery can't be explained by talk about "more appropriate locations."  No one confines war memorials to cemeteries -- D.C is replete with them, and so are state capitals.  Grant's Tomb is central NYC -- does it belong in a cemetery somewhere?  I don't think so.  

Naturalizing Wet

One thing in Naturalizing Jurisprudence that I found annoying was the treatment of what Leiter variously calls Neurath's ship and Neurath's boat.  Neurath himself wrote about a ship.  (I don't read German and am not sure whether the English versions of his work are reliable.)  But it is bad metaphor.  For most kinds of ships, it is not possible to rebuild the ship at sea -- one can replace only a limited range of pieces of the ship.  One cannot, for example, relay or replace the keel while at sea (for most kinds of ships).  Same problems for boats.  On the other hand, Neurath's raft works.  The idea is that one can rebuild, i.e., replace all the pieces of the raft while still afloat.  This can be a metaphor for building a science (or other intellectual) program -- one can replace pieces with better bits without tearing down the theory and gradually replace the entire theory without abandoning it.     

Mr. Smith Goes to Estonia

In the vein of our own Hate America Club (tea party), there is this short reminder of racism in the Baltic States.  People legally settled in Estonia, born there of legally present parents, aren't permitted citizenship because they don't speak Estonian.  It's okay because the aliens are of Russian origin, so the sins of the Soviet are visited on them.  Class enemies of a kind, I suppose.  The social policy is evil.  The claim that the government is engaging in outreach is a bit of farcical posing.  The same government pulled down a memorial to the Soviet Army's victory of Nazi Germany -- on the theory that memorials all belong outside the public spaces of the city.  Yes, better the Nazis had won Word War II.  

But what has Estonia to do with Mr. Smith?  Should be apparent -- the Estonians welcomed the Nazi invasion of Eastern Europe, welcomed the Nazis to Estonia and aided the war effort.  So, I suppose, for Mr. Smith Estonians are to answer for Nazis.  Best strike them off the list of those permitted to immigrate, and best not be dealing with them at all.  Or maybe the statute of limitations has run...

Realism and Positivism

I recently read Leiter's Naturalizing Jurisprudence.  It is an interesting collection, at least for those interested in Philosophy of Law.  One central theme is an effort to rehabilitate the American Legal Realists.  Everyone going through law school gets a caricature of the movement -- Realism is the view that judicial decisions are all arational, driven by psychology or class or the like.  In fact, the Realists were a somewhat varied group and the theoretical push was a good deal more complicated and interesting than the slogan that breakfast determined the decision.  It is better understood as arguing that at least appellate decisions are not determined by existing law (statutes, cases, etc.) and that extra-legal factors play a significant role in judicial decisions.  In other words, a sort of social science approach to judicial decisions.  The social and economic class of the judges (at least for their formative years) are important to understanding (and predicting) the decision outcomes of the judges.  As Leiter points out, the whole approach supposes a stable conception of law or legal system, indeed seems to call for a theory of law which is positivist in outlook, if not all details.  (Read the book for the details.)  Which is a persuasive line of analysis I think.  But it also raises a query, which is not addressed in the book.

 The realist approach to understanding judicial decisions focuses attention on the non-legal factors which drive actual decisions.  The Realist suggests looking beyond the text of opinion, as the opinion is not determined by the available legal sources.  Look instead at the social class, appointment politics, and so on.  This supposes a positivism account of law (the legal sources which do not determine).  One of the central strands of argument for Positivist legal theories is grounded in accounts of the authority of law.  Authority calls for obedience, and not just on prudential grounds.  Accounts of legal authority do seem to tie to some claimed duty to obey the law, i.e., abide by the directives of authority.  But that all suggests a kind of inconsistency (not so strong as logical contradiction) between the theory of law and the theory of adjudication.  In short form, the theory of adjudication at best undermines any notion of authority attaching to judicial decisions, yet what is distinctively legal is authority.  After all, there is no remotely plausible account of authority which ties it social and economic class; I can't think of a normative reason (or argument) suggesting that decisions driven by class biases and interests should be accorded deference.  Yet the Realist account of adjudication looks to just such counter-authority explanations of decisions.

The Mosque

Another in the set of bad arguments about the NYC Islamic Community Center and Mosque.  We all have suspicions, but surely a little time could be invested in getting at the record.  The Mosque has been in the neighborhood for over 20 years -- it is not new.  At most, it is relocating within the neighborhood.  Ground Zero is some distance away, not even visible from the location of the new building.  That building is largely a community center, with the usual array of services and spaces -- auditorium, meeting rooms, childcare, restaurant, and, no doubt, a worship space (mosque).  The project is being run by an imam and his wife, who have been there for over 20 years.  The imam did overseas trips for the US under Bush (and Obama).  He is well-known in religious circles as a political moderate.  What is the problem here?

That people who identify as defenders of Islam are responsible for 9/11 attacks is not really an argument.  It is plain that Al Queda does not speak for the religion, and that its adherents are not responsible for the nuts.  If we adopt a different approach, then are the capitalists and christians all to be held to answer for the slaughter in Guatemala and El Salvador?  Do we ban nationalists -- after all it was nationalists who gave such a century of slaughter in the 20th? The opposition seems pretty keen on the kind of argument that gave China is re-education camps for all those connected with capitalism.  Mr Smith has apparently forgotten the flood of expressions of solidarity and condemnation from almost the entirety of the Islamic world following 9/11 (virtually all of the Islamic states and a multitude of religious leaders).  Maybe the messages were not sent to his house, but surely a quick look at the news from the following weeks would put to rest the canard that the Islamic world celebrated 9/11.