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Legal Eagle • Legal Goat • A Memory of Mystery 1 • The Inquisition Continues • Free Will Haiku • A Memory of Mystery 2 • Back To Back • A Back To The Future

Legal Eagle

DEAR EDITOR: Perhaps if Dr Ochieng’- Odhiambo’s article in PN 79 had incorporated a discussion of the wider legal system in which an attorney practises (based on the English Common Law), he might have shown that the Law itself has ameliorated the moral and ethical wrestling which so concerns him.

What Dr Ochieng’-Odhiambo did not raise was the crucial issue of the burden of proof. One of your correspondents in the same issue, Tibor Machan, made the same point. In criminal law, the burden is that of ‘beyond a reasonable doubt’ – often translated to the jury as ‘sure’, sidestepping an epistemological discussion on what that word means. In the civil courts in this country, the test is ‘On the Balance of Probabilities’ – is it more likely than not? In both jurisdictions, the onus of proof is on those bringing the case.

I recently retired from practice as a lawyer. Rather like the lecturer referred to in the article, when clients announced they wanted justice, my heart would sink. I told them that the law and justice occasionally and miraculously coincide, but not very often. I could advise on the law and represent them on it, but justice was in a different realm. Yet somehow in administering and interpreting the law, the judges produce a veneer of being able to tame this elusive and miraculous ephemera, justice.

Does the judge dispense justice, or an approximation? The law is a very cunning and corpulent beast, having fed on the minds of innumerable lawyers. It has evolved ways of coping with ‘law v justice’ and ‘legal v moral responsibility’.

One way concerns legal responsibility. Legal responsibility is not, as one might imagine from reading the article, purely and only a problem for the defence lawyer. The crucial point is that the accused is entitled to be tried according to law, and it is the prosecution’s function to prove the case beyond all reasonable doubt. Is the jury ‘sure’ of guilt? Quite simply, if the jury are not so satisfied after hearing the evidence tested, and any guidance on the law from the judge, then the accused is entitled to acquittal, even if in fact guilty: he has not been found guilty according to law. The adage that it is better that one hundred guilty men go free than one innocent man be convicted remains a fundamental safeguard of a civilised society. While it seeks the truth, the law knows that it usually only achieves an approximation. Another legal saying is that there are three sides to every case: one side’s, the other side’s, and the truth. Hence the Beyond a Reasonable Doubt and Balance of Probability tests. Not certainty. That’s unrealistic.

It is true that as an officer of the Court a lawyer cannot lie to the Court. The difficulty is if the accused admits his guilt to his (defence) lawyer. If the confession is pre-trial, the proper course of action would be for the accused’s lawyer to advise him to get another counsel. Some lawyers might hold to the principle that even if guilty, the prosecution still has to satisfy a jury on the evidence, and failure to do so entitles the defendant to an acquittal in law, otherwise noone would be safe. A trickier position arises if the defendant admits guilt during the course of the trial but wants to test the prosecution case in the hope of an acquittal.Will the sudden withdrawal of counsel raise doubts in the jury’s mind, and thus prejudice the defendant in being tried according to law?

Secondly, the moral issue. The law has been clever here too. Moral questions are passed to the jury under the guise of ‘fact determination’. The judge and counsel are able to sidestep the moral issues raised by the concept of ‘guilt’ by saying, in effect, ‘We have provided you with the framework of the law, via the judge and the evidence as tested in cross examination by counsel. It’s your decision on guilt, not ours.’

There are of course well known examples of what lawyers refer to as perverse verdicts by juries, often clearly reflecting sympathy or approval of the defendant’s conduct – for example in whistle-blowing over what the jury regard as dubious or unacceptable practices by the state – where the evidence justified conviction, but the defendant was acquitted. Doing the right thing for the right reason: Kant would presumably approve, even if neither the defendant nor jury have heard of him. Juries are barometers of what the community may agree upon as acceptable at that particular time, with considerable scope for argument in the jury room. Accordingly, focussing on the perceived dilemmas confronting defence counsel in a criminal case does not provide a balanced picture on how the system actually works; and how the issues which occupied Dr Ochieng’-Odhiambo are skilfully avoided for the most part.

The prosecution has the onus of proof. The jury decides if that onus has been discharged. If not ‘sure’ of the accused’s guilt under the legal rules, then he is entitled to go free, even if guilty. Paradoxically, this is a safeguard for us all. It is law which prevails, not justice. But sometimes they do go together.


Legal Goat

DEAR EDITOR: Bill Capra (Issue 79) argues that everything is a goat. Lawyers, then, are also goats. However, there is a question about whether abstract ideas are goats. The consensus seems to be that only material things are goats – those things that can be clearly defined. So the law that lawyers practice and deal with is not considered to be a goat because laws tend to be abstractions. However, the law is clearly not an abstraction when one finds themselves on the wrong side of it, or imprisoned for breaking it. Being in jail is probably like being in a goat’s stomach. Being in jail is quite a material experience, and one hell of a goat to be in. Goats are known for eating anything.

I don’t think goatism likes lawyers. But they’re a necessary evil, and essential for their ability to help solve problems that arise between other goats. The law profession is instrumental in bring civility to the general goat population.

There is one good thing about everything being a goat. It means there is a commonality that transcends the obstacles such as tribalism which have made it difficult for different races to coexist. In this respect goatism has ‘eaten up’ many of the divisions afflicting humankind – with great help from its lawyer contingency, who drafted and implemented the laws and rights that protect us.


DEAR EDITOR: So Bill (shouldn’t that be ‘Billy’?) Capra believes that a simple argument from elementary modal principles can demonstrate that everything is a goat.Well, I, Peter Lupus, can prove him wrong. The proposition ‘Everything is a goat’ is logically incompatible with ‘Everything is a wolf’ – unless we subscribe to the rather absurd argument that a wolf is really a goat and vice versa; and I can demonstrate that, although a wolf is not a goat, everything, including goats, is in fact a wolf.

First of all, it can be shown empirically that all mortal beings, whether human, bestial, or vegetable, can survive only by devouring one another; and the wolf is the very epitome of voracity (‘Look at the way he’s wolfing down his food’; ‘Don Juan is a wolf’). This argument should appeal to all disciples of the philosophy of language. But could senseless things also be wolves? Yes, they could – because the clinching argument is not an empirical but an epistemological one. ‘Cogito ergo sum’ is the irrefutable proof that I am; but there can be no proof whatsoever, if we exclude leaps of faith, that anything else is. Solipsism is thus the only position that a purely rational philosopher can adopt; and everything that appears to exist, including my body and all its various parts, not to speak of pencil sharpeners, etc, is merely a projection of myself. This applies equally to abstract entities, including numbers; and it also applies to the author of the article in question.


A Memory of Mystery 1

DEAR EDITOR: There is a slight, but significant, error in Ismar Badzic’s description of the final scene of Antonioni’s The Passenger (Philosophy Now Issue 79). The ‘mystery girl’ has not “mysteriously disappeared.” In fact, she speaks the very last line of dialogue in the film. She is standing by the side of Locke’s bed, along with his wife and the police, when he is found dead. The policeman asks first the wife, then the girl, if they recognize him. His wife says “No,” but the girl says, “Yes, I knew him.” The implication is that his wife of many years did not really know him, unlike the girl who had shared only his final weeks of drifting away from any fixed identity. Shortly before this, in the middle phase of the long and intricate penultimate shot, the girl could be seen wandering around the hotel courtyard. Antonioni’s films convey their meanings through images rather than words, inviting us to empathize with such drifting movement, in which his characters detach themselves from purposive activity and become permeated with the atmosphere of their surroundings. His films are among the most distinctive and original in the history of cinema, and have influenced my view of life as profoundly as the work of any philosopher.


The Inquisition Continues

DEAR EDITOR: Professor Raymond Tallis claims in PN 79 that [religious] “believers appear to have difficulty specifying, in a principled and consistent way, those circumstances under which God’s will concerning the sanctity of life is to be upheld” saying that both those whom he identifies as “redneck Bible bashers” and also “the more reflective Church of England leaders” labour under this unfortunate difficulty. I do not know why he did not look to the largest of the Christian bodies, which is also the institution with the longest tradition of analysing moral problems, namely the Catholic Church. This Church offers a principle about the taking of human life, ‘It is always wrong to intend to destroy innocent human life’, which applies in all the cases he lists. This single principle explains why the Church opposes abortion, euthanasia, and any other form of murder; it explains why pain relief can be offered to the dying even if is foreseen that their lives may be thereby shortened; it also explains why the Church does not exclude capital punishment and a war fought for a just cause; finally, it explains why civilians may not be targeted in war, since they are, in the relevant sense, innocent – by definition, they are not engaged in fighting for a unjust cause.

Professor Tallis also seems to misunderstand ‘the principle of double effect’, when he writes of it “as a way of achieving what assisted dying might achieve, without biting the bullet and supporting an explicit hastening of death.” The very point of the principle is that one is not acting to achieve the patient’s death. One acts to relieve pain, albeit foreseeing that death will be hastened. He argues that it is impossible to say where foreseeing death merges into intending it, but there is no continuum between foreseeing and intending any more than there is between chalk and cheese. They are entirely different notions. There may indeed be a moral struggle for the doctor who is tempted to move from one to the other, but there is no conceptual problem here for the philosopher.


DEAR EDITOR: Father Crean’s article in PN 78 suggests that it was reasonable for the Church to persecute nonbelievers “out of concern for their souls.” Presumably Fr. Crean would confine this defence of the Inquisition to the practice of dealing with heretical Catholics. Here there may have been an absence of logic, or perhaps of compassion, in confining the benefits of the Inquisition to lapsed Catholics, without concern for the souls of the majority of the world’s population. But in any case it seems clear that the Inquisition did not confine its attention to Catholics who erred: it insisted that all the citizens under its jurisdiction conform to the faith.


DEAR EDITOR: In Issue 78, Father Crean writes, “Don’t make it a reproach against a body claiming to hold an authority from Heaven that it is authoritarian.” He even defends the Inquisition on the grounds that “the Church has a mandate to teach from a God who can neither deceive nor be deceived.” But how is this to be proved? I was once in conversation with a Muslim who claimed that the Koran is the word of God because the Koran says it’s the word of God.When I asked him if he could see the fallacy in this statement, he claimed he couldn’t. Fr Crean’s claim is identical. It is simply unreasonable to make the claim “My religion is true because that is how truth is defined within my religion.” The Roman Catholic Church would rather have to accept a fair judgment on its claims, that is, it would have to accept standards of truth freely agreed by people of many viewpoints, religious and non-religious. No belief-system should be judge and jury in its own case.Moreover, there can be no moral or spiritual value in forcing beliefs upon people in an authoritarian manner. If belief is not exercised in full liberty of conscience, it does not meet the criteria of true belief.


DEAR EDITOR:When someone employs the ‘throw presumptions against the wall and hope they stick’ approach to argumentation, as Victor Stenger did in Issue 78, the reader should expect old bad arguments pretending to be new. As both a Christian and a student of philosophy, I accept that neither Anselm nor anyone since has proven the existence of God; but the atheist who seeks to disprove the validity of faith must also argue from unsubstantiated premises. For instance, evolution depends upon natural selection and common descent. Since the latter remains theoretical, so does evolution. Stephen Hawking and James Hurtle posit that our universe emerged from another; but as with Hindu cosmology, this is merely ‘turtles all the way down’. Science will never answer every how and why.

Dragging politics into the New Atheist campaign achieves nothing. The actions of extremists are not cause to condemn a religion. Conversely, ‘Godless’ Denmark and Sweden may be models of peace; but the extermination of millions in Germany, China and the Soviet Union reminds us of the dehumanizing effect of the humanist fusion of science with politics and the subsequent substitution of the State for God.

To define faith as “belief in the absence of empirical evidence” is to assume that faith has no content. To state, as did Jacques Monod, that “it is morally wrong to accept claims that cannot be verified by objective scientific knowledge” is to assume that only empirical knowledge has truth value and that subjective experience is not valid. It follows that billions are either delusional or deceitful. But it’s also true that the mathematician practices computation in his mind. Experiments that verify his calculations are no more or less valid than lives transformed by faith.Without (empirically) proving that truth is limited to empirical evidence and conclusions drawn from it, the New Atheists have no case.


DEAR EDITOR: Michael Antony’s ‘Where’s The Evidence?’ in Issue 78 fails to do justice to the relationship between evidence and atheism. Evidentialism is certainly relevant to the debate, but is only one quiet corner of the epistemological landscape.

In the case of theism the supporting evidence is extremely weak. The quality of the evidence against depends on which brand of theism you’re talking about. If you favour an impersonal God-as-firstcause who is beyond space and time and never suspends the regularities of nature, then it is unlikely evidence will ever be found that contradicts you. I invite you to consider the arguments instead – Michael Martin’s Atheism: A Philosophical Justification is an excellent place to start. If however you prefer the kind of God who created the world a few thousand years ago, then you believe something diametrically opposed to a mountain of high-quality evidence. At this point more sophisticated theologians may be tempted to invoke the straw man defence [ie, ‘we don’t disbelieve evolution’]; but, according to the results of a large survey conducted in 2009 for the British Council, 43% of people in the United States believe that all life on Earth was created by God in its current form (britishcouncil.org/darwin_now_survey_ global.pdf).We are therefore not talking about the views of some unusual sect, or a caricature of religious thought.

Turning from evidence to arguments, the momentum seems to be with atheism. In a recent survey conducted by David Chalmers and David Bourget, of 1,803 philosophy faculty members and PhDs (philpapers.org/surveys), 69.7%of respondents leaned towards or accepted atheism. Truth cannot be put to a vote; but one would hope that professional philosophers have not arrived at their positions by accident. The classical philosophical arguments for the existence of God – the ontological, cosmological and teleological – are generally regarded as having failed, although a minority still persist in valiant attempts to resurrect their corpses. The arguments against – the existence of evil, doctrinal dubieties, and the apparent internal inconsistency of divine attributes – seem to be in good health by comparison.Meanwhile, over in the ethics department, philosophers have largely abandoned systems that take divine command to be the source of morality.

Some version of theism might still be true; but if so, then it is in spite of the balance of the evidence not because of it, and counter to the centre of gravity of the philosophical arguments thus far devised.


DEAR EDITOR: In his piece ‘The Varieties of Atheist Experience’ in PN 78, Professor Paul Cliteur referenced the philosopher Anthony Kenny, who believed that it was contradictory for God to be both omniscient and benevolent. He argued that to be all-knowing about the future of human actions would imply determinism, as the future would therefore be pre-set; however to be benevolent must remove God from responsibility for human wickedness – which therefore implies our free will.

I believe that just because an Omniscient God knows the future, this does not affect human free will. Even if the future is set, it is created by our personal decisions and actions. I made the choice of coffee instead of tea, or to stay in instead of going out. If the future is preset, it is set through these decisions and actions. Sure, it can be argued that these decisions could not have been any other way, but for me this argument is circular.

It is possible for a God to be both allknowing and benevolent. God may know the future; but that future is determined by our actions, and those actions are determined by our choices. God just knows what choices we’re going to make.


Free Will Haiku

Do I have free will?
I use it all the time!
What choice do I have?


A Memory of Mystery 2

DEAR EDITOR: In Issue 78, Prof Tallis reflects ‘on the true mystery of memory’. At the start of his article, he makes it clear that he regards brain activity as an insufficient explanation of consciousness. I also should be clear that I’m with Searle in thinking that “the mysterians are too pessimistic” (Mind, 2004, p.102). And surely Tallis is a mysterian – indeed, at the end he urges the removal of ‘dull materialist blinkers’ and acknowledgement of ‘the wonderful mystery of memory’. I’m reminded of Henslowe in Shakespeare in Love, who, confronted with awkward questions responds, “I don’t know; it’s a mystery!”

How can it be possible that mere material events account for all the incredibly complex features of memory, let alone consciousness? In 1992, in Bright Air and Brilliant Fire, Edelman had already pointed out that it is hardly surprising that “the conscious life [which science] describes will always remain richer than its description” (p.209). For Tallis, part of this richness is its ‘aboutness’: “it is difficult to understand how physical [brain] activity can be ‘about’ something other than itself.” However, this problem arises only if a narrow and surely now discredited view of the physical is assumed – one that for Searle relies on a mistakenly assumed metaphysical gulf between the ‘physical’ and ‘mental’, rather than, more plausibly, on a relationship between different aspects of our being. This position is close to that of Spinoza’s in the seventeenth century, who, challenging Descartes’ dualism, argued that mind and matter are different aspects of the same entity.

What can easily be masked is a crucial distinction between us as physical objects of investigation, and our actual subjectivities. A consequence is that the former can be conflated with the latter, inevitably making the scientific theory appear inadequate as an account. Yet objective descriptions of brain events are distinct from the description of these events for the subject who has them. Searl’s distinction between neurobiological causes of psychological states and the states themselves, upon which we can elaborate at extraordinary levels of complexity, is instructive, and Tallis’s contribution is a case in point. Of course, the more we do elaborate, the more complex we can become, and the less likely it can seem that such astonishing mental capacities can be due merely to (and erroneously assumed absolutely opposed to) physical events in our brains. Hence the inflation of our self-importance to ‘mysterious’ metaphysical levels.

Tallis does not believe that his “actual memory is just a matter of the size of the nervous system or the number and complexity of the neurons in it.” This seems odd, for we know that the number of cells produced through cell division in an organism has an enormously profound influence on the kind of organism it becomes. His word ‘just’ just helps to skew his belief. And whilst the difference in neural complexity between humans and sea snails is vast, that between us and small mammals is less so, and the brain structures have obvious similarities.


DEAR EDITOR: While I share Raymond Tallis’s antipathy to a reductive scientism which treats our mental life as mere chemical reactions, I fear that in his article on memory he goes too far in the opposite direction, and is in danger of denying obvious connections between mental states and the brain. He says, correctly, that mental states are intentional (are about something) and that memories have a tense (the past), but he then insists that neither of these factors can be found anywhere in the brain. Tallis’s account is beginning to sound like a return to Descartes’ dualism, with all its problems of location and connection.

We know drinking alcohol impairs mental functions, including memory. Now a staunch dualist may maintain that memory is in a different category from the material brain, and from the chemical, alcohol; but a direct causal effect can be predicted and observed. (For more, see belfast.humanists.net/mind_alcohol.htm.) The advance of computer technology has also weakened the dualist case. The comparison between file storage and human memory is a persuasive analogy. There are also devices which can recognise a voice, or a fingerprint, or a face. So intimations that memory is a mysterious phenomenon which has no basis in the physical world seem misplaced.

How can we accept that minds and bodies interact, without falling into the trap of a crude reductive materialism? Perhaps the answer lies in ‘emergent properties’, as JS Mill suggested: the brain and the body provide a physical basis for the emergence of mental properties at a higher level which are not reducible to their physical components. Such emergent properties can interact with the physical substratum, but are not identical to it. Thus we can preserve our mental life as an irreducible fact, without having to buy any real estate in a Cartesian cloud cuckoo land.


Back To Back

DEAR EDITOR: In Issue 77, Mitchell Silver ponders what to do with his chronic back pain without knowing its cause nor effective treatment. Not knowing what to do, he says, “is a challenge to my devotion to Reason”, since “agnosticism is decidedly not a comfortable place to be in practice.” As a remedy, he advocates believing in something despite “no particularily good evidence” – in his case, “a variety of things for my back” – so as to reap the benefit of placebo effects. Fortunately for low back pain sufferers, and contrary to Silver’s claim, there is scientific evidence that acupuncture works: see for instance, Arch Intern Med, #s 158 and 167. These trials showed that acupuncture treatment for at least 6 months results in better outcomes than conventional therapy involving physiotherapy, massage, heat therapy, electrotherapy, etc. An intriguing fact is that in both the studies cited, true acupuncture does not outperform placebo or sham acupuncture, although both are shown to be better than conventional therapy or control interventions. Hence, Silver’s believe-insomething approach for placebo effects makes perfect sense, as long as it enhances one’s general fitness.My best and easiest back remedies are going for a walk, taking a rest, and/or having a hot shower. If none of these works, my next bet is to try acupuncture – my ‘truly rational’ practical response to back pain.


A Back To The Future

DEAR EDITOR: I was shocked to read in issue 78 of the cuts to philosophy teaching, as it was the lack of widespread philosophy teaching, ie of the problem of induction (‘you cannot predict the future from the past’) which caused the economic crisis in the first place!


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