When Reality Leads to Legal Realism

“If courts don’t have to defend their decisions, then they’re just acts of will, of power.”

—Adam Liptak, “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings.” The New York Times. October 26, 2020.

At base, Legal Realism, when you get past all the philosophical talk about natural science, is simple, “The law is what judges say it is.” There need be no consistency, for power need not offer explanations. The problem with the above quote is not a problem of shadow rulings, it points to something people don’t want to accept is a feature of the legal system as a whole. It’s more or less arbitrary. But, we need a method to resolve disputes. Every human society has judges.

The common law tradition has the advantage of trying to reach agreement among judges over time, a.k.a., stare decisis, but it still is based on granting the power to resolve disputes to certain people because it is convenient. As members of the country’s elite, judges will tend to align with elite interests. Everything else, such as the notions of positivism or “originalism” is just rationalizing “acts of will, of power.” See also: Exhibit A.

Anything Can Go – Interview With Paul Feyerabend in English

A quote from Paul Feyerabend‘s Stanford Encyclopedia page, quoted this bit:

“One of my motives for writing Against Method was to free people from the tyranny of philosophical obfuscators and abstract concepts such as “truth”, “reality”, or “objectivity”, which narrow people’s vision and ways of being in the world. Formulating what I thought were my own attitude and convictions, I unfortunately ended up by introducing concepts of similar rigidity, such as “democracy”, “tradition”, or “relative truth”. Now that I am aware of it, I wonder how it happened. The urge to explain one’s own ideas, not simply, not in a story, but by means of a “systematic account”, is powerful indeed. (pp. 179–80).

-Giedymin, J., 1976, “Instrumentalism and its Critique: A Reappraisal”, in R.S.Cohen, P.K.Feyerabend & M.Wartofsky (eds.), Essays in Memory of Imre Lakatos, Dordrecht: D. Reidel, pp. 179–207.

Sorites Paradox: Grain by Grain

The puzzle can be expressed as an argument most simply using modus ponens:

P1. 1 grain of wheat does not make a heap.

P2. 1 grain doesn’t make a heap, then 2 grains don’t.

P3. If 2 grains don’t make a heap, then 3 grains don’t.

Pn. …

C. If 999,999 grains don’t make a heap, then 1 million grains don’t.

-Hyde, Dominic and Diana Raffman, “Sorites Paradox“, The Stanford Encyclopedia of Philosophy (Summer 2018 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/sum2018/entries/sorites-paradox/>.

The Sorities Paradox reveals another facet of the limits of categories. How many grains is in a heap? How much hair do you need on your head to not be bald?

Books I’d Like to Read in 2021

A short fiction where I pretend to you, dear reader, that I am still capable of reading more than a book a week.

  1. Mastering the Core Teachings of the Buddha by Daniel M. Ingram
  2. Fool on the Hill by Mark Sargent
  3. The Omnibus Homo Sacer by Giorgio Agamben
  4. Cargill Falls by William Lychack [x]
  5. Black Imagination by Natasha Marin (Editor)
  6. Caste: The Origins of Our Discontents by Isabel Wilkerson
  7. Counting for Nothing: What Men Value and What Women are Worth by Marilyn Waring
  8. Deep Adaptation by Jem Bendell [x]
  9. The Carrying: Poems by Ada Limon [x]
  10. Ace: What Asexuality Reveals About Desire, Society, and the Meaning of Sex by Angela Chen
  11. Madness, Rack, and Honey: Collected Lectures by Mary Ruefle [x]
  12. How We Show Up: Reclaiming Family, Friendship, and Community by Mia Birdsong
  13. Hexaflexagons and Other Mathematical Diversions by Martin Gardner
  14. Steps to an Ecology of Mind: Collected Essays in Anthropology, Psychiatry, Evolution, and Epistemology by Gregory Bateson
  15. Are Women Human?: And Other International Dialogues by Catharine A. MacKinnon
  16. War and Peace and War: The Rise and Fall of Empires by Peter Turchin
  17. Breaking Bread with the Dead: A Reader’s Guide to a More Tranquil Mind by Alan Jacobs
  18. Lost in the Cosmos: The Last Self-Help Book by Walker Percy
  19. Take the Long Way Home: Memoirs of a Survivor by Susan Gordon Lydon
  20. All I Really Need to Know I Learned in Kindergarten by Robert Fulghum
  21. Ball Four by Jim Bouton
  22. The End of Patriarchy: Radical Feminism for Men by Robert Jensen [x]
  23. The Memory Police by Yōko Ogawa
  24. Weird: The Power of Being an Outsider in an Insider World by Olga Khazan
  25. The True and Only Heaven: Progress and Its Critics by Christopher Lasch
  26. Modernist Cuisine at Home by Nathan Myhrvold
  27. On Food and Cooking by Harold McGee
  28. Another Birth by Forough Farrokhzad
  29. Darkness Spoken by Ingeborg Bachmann
  30. So Long a Letter by Mariama Bâ
  31. Oblivion Seekers by Isabelle Eberhardt
  32. The Neopolitan Novels by Elena Ferrante
  33. Machines in the Head by Anna Kavan
  34. The Selected Poems of Rosario Castellanos by Rosario Castellanos
  35. Mad in Pursuit by Violette Leduc
  36. The Wedding by Dorothy West
  37. The Hebrew Bible by Robert Alter
  38. The Red Book: Liber Novus by C.G. Jung
  39. New and Selected Poems by Mary Oliver
  40. Heart of the Original by Steve Aylett
  41. On the Brink of Paradox by Augustin Rayo
  42. The Commonwealth series by Peter F. Hamilton
  43. Notes on the Synthesis of Form by Christopher W. Alexander
  44. Sandworm by Andy Greenberg
  45. Women, Race & Class by Angela Y. Davis
  46. A Passion For Friends by Janice G. Raymond
  47. The Precipice by Toby Orb
  48. Wild Pork and Watercress by Barry Crump
  49. Daring Greatly by Brené Brown
  50. Primeval & Other Times by Olga Tokarczuk
  51. Consuming the Romantic Utopia by Eva Illouz
  52. Tools for Conviviality by Ivan Illich

Exhibit A for Legal Realism: I’m Not in Washington Defense

“‘Defendants maintain that because the state constitution defines Washington’s northern boundary in relevant part as the 49th parallel, the State does not have jurisdiction to prosecute them for crimes committed south of the international border between the United States and Canada, but north of the 49th parallel as currently located.’

Perhaps not wanting to create ‘a nebulous strip of territory along the border that was part of the United States, but not part of Washington,’ in the words of the AP, the Court ruled against the defendants. (Per the decision, ‘the political and conceptual location of the international and state borders was the same when Washington was admitted as a state, and remains so.’)  But don’t write off their case as entirely frivolous. One of the nine members of the Court, Justice Richard Sanders, dissented, arguing that ‘this case is easier than pi. The 49th parallel can be located to the decimal. If that term is ambiguous, the language of law is no more than sand shaped into castles at the arbitrary whim of he (or she) who wears the black gown.'”

-Dan Lewis, “I’m Not in Washington Defense.” NowIKnow.com. November 18, 2020.

Mary’s Room

“The questions raised by ‘Mary’s Room’ – including whether anything about experience transcends physical facts – remain some of the most perennial and unsettled in philosophy, even if Jackson himself actually reversed his position, concluding that the experience of colour vision does indeed correspond to a brain state, albeit one we don’t yet fully understand.”

—TED-Ed, “Mary’s Room.” Aeon. September 3, 2020.

Risk Defines Love

Love, true love, makes possible what was previously impossible.

“In this short film from the UK director William Williamson, [French philosopher Alain] Badiou argues that today’s approach to relationships, with its consumerist tendency to focus on choice and compatibility, and the ingrained refrain to move on when things aren’t easy, means that we need a philosophical reckoning with how we think about love. To make his point very specific, Badiou points to the ever-growing prevalence of online dating services that claim to offer algorithmic matching of partners, a way of seeking love that, he thinks, drains love of one of its most vital qualities – chance.”

—William Williamson, “‘Defend love as a real, risky adventure’ – philosopher Alain Badiou on modern romance.Aeon. March 6, 2020.

Introduction to Immanuel Kant

“The basic value in Kant’s ethics is that of human dignity – the rational nature in persons as end in itself. A person is a being for whose sake we should act, and that has an unconditional claim on us. This is the source of what Kant calls a categorical imperative: a ground for action that does not depend on any contingent desire of ours or any end to be effected by action set at our discretion. John Rawls corrected the basic and traditional misunderstanding of Kant’s ethics when he said that it is not an ethics of stern command but rather one of self-esteem and mutual respect. To this I would add that Kant’s ethics is also an ethics of caring or empathy – what Kant calls Teilnehmung: sympathetic participation. This is not sympathy merely in the sense of passive feeling for or with others, but instead an active taking part in the standpoint of the other which leads to understanding and concern.”

-Allen W. Wood, “Immanuel Kant: What lies beyond the senses.Times Literary Supplement. February 21, 2020.

Probably the most accessible introduction to Kant’s thought I’ve read. Also worth taking a look at the Five Best Books on Immanuel Kant.

The Philosopher Redefining Equality | The New Yorker

“‘People now have the freedom to have crosscutting identities in different domains. At church, I’m one thing. At work, I’m something else. I’m something else at home, or with my friends. The ability not to have an identity that one carries from sphere to sphere but, rather, to be able to slip in and adopt whatever values and norms are appropriate while retaining one’s identities in other domains?’ She paused. ‘That is what it is to be free.’ …

…As a rule, it’s easy to complain about inequality, hard to settle on the type of equality we want. Do we want things to be equal where we start in life or where we land? When inequalities arise, what are the knobs that we adjust to get things back on track? Individually, people are unequal in countless ways, and together they join groups that resist blending. How do you build up a society that allows for such variety without, as in the greater-Detroit real-estate market, turning difference into a constraint? How do you move from a basic model of egalitarian variety, in which everybody gets a crack at being a star at something, to figuring out how to respond to a complex one, where people, with different allotments of talent and virtue, get unequal starts, and often meet with different constraints along the way? …

…To a pragmatist, “truth” is an instrumental and contingent state; a claim is true for now if, by all tests, it works for now.”

—Nathan Heller, “The Philosopher Redefining Equality.” The New Yorker. January 7, 2019.

Sounds like it is time to revisit with John Dewey.