Logic as relations of ideas in Hume

Here are some quick screen shots of my notes on relations of ideas. I'll upload proper scans when I get a chance.

Extensions to other times and other objects

A question I raised in an earlier Hume post went as follows:

/>/One of Hume's central doctrines is that we cannot discover causal relations via impressions; that's clearly what his range of examples is supposed to show (bread, billiard balls, etc). But in part 2 of section 4, Hume glosses his doctrine in a slightly different way: "As to past Experience, it can be allowed to give direct and certain information of those precise objects only, and that precise period of time, which fell under its cognizance: but why this experience should be extended to future times, and to other objects...." The problem here seems to be not about causal relations, but about our knowledge of object and other, as well as our knowledge of past and future times. So an intriguing question: is causal information non-discoverable because object-other informationis non-discoverable? Or perhaps because past-future information is non-discoverable? (Which thing can't we know via impression that leads us to miss out on natural patterns?)/->/

Let me see if I can make my central idea a bit clearer. (1) I wonder, given Hume's remark here quoted, why he thinks we cannot tell how to extend the information we have about a particular object to some other object. Similarly, (2) I wonder why he thinks we cannot tell how to extend the information we have for some period of time to some other period of time. 

Questions (1) and (2) seem different to me than the stock Hume doctrine that we cannot have causal information given that we cannot have an impression that corresponds to the necessity that effects follow from causes. The stock doctrine is plainer to accept, it seems, since necessity is logical information, and on the Humean picture logic belongs among relations of ideas rather than matters of fact. But is the this-ness of an object versus the that-ness of some other object logical in that way? Less idiosyncratic: is the individuation of objects logical for Hume? The time version of my worry (in (2)) is similar, if future times are simply regarded as times other than the past or present ones. Is the this-ness (perhaps the now-ness, or the past-ness) of a time versus the that-ness (then-ness) of some other time a logical feature of it?

There's a strong Cartesian reading we could give which would treat pattern-y features of our precepts as logical; but no self-respecting empiricist could possibly go there, I would think. To see things that way would completely hollow out empiricism, since sense information would be little more than a logical edifice built around some kind of raw stimulus. 

Maybe Hume has something in mind about abstract categories of thought that are inaccessible to sense, and that capture some of the features I'm puzzling over. Maybe his treatment of space and time (in the Treatise) would shed more light on this. 

That's where I'll look next.

Hume questions 2

Here are some bloggable questions that occur to me as I read the Enquiry, sections 3-5.

Re section 3:

01 Hume refers to a "universal principle" that led to the appearance of all the diverse languages spoken by various peoples in the section's opening paragraph. He says too little about his idea, but I'm curious what he has in mind here. Is language merely a moving around of relations of ideas, and so the principle in question is a principle of logic and the a priori operations of mind? But then how did it lead to empirical facts about language varieties? Or is language a tool for expressing our impressions to others, and thus is sort of a posteriori, sort of a priori?

Re section 4:

01 A homework assignment that grew from the discussion in the room today: does Hume think of impressions as simple? complex? both? Does it matter to his epistemology to sort impressions using simple/complex criteria?

02 Does agnosticism about causal relations entail any substantive claims about those relations? (That is, are we entitled to conclude anything about the real nature of cause and effect from the fact (if it's a fact) that we cannot discover causal information?)

03 Hume's short list of "ultimate springs and principles" near the end of Part 1 includes "elasticity, gravity, cohesion of parts, communication of motion by impulse". What kind of list is this? Are these old-timey versions of what physicists think of as the Standard Model? Or is it meant to be more of a list of what ordinary observers would marvel at in the realm of physical events that occur in everyday life?

04 One of Hume's central doctrines is that we cannot discover causal relations via impressions; that's clearly what his range of examples is supposed to show (bread, billiard balls, etc). But in part 2, Hume glosses his doctrine in a slightly different way: "As to past Experience, it can be allowed to give direct and certain information of those precise objects only, and that precise period of time, which fell under its cognizance: but why this experience should be extended to future times, and to other objects...." The problem here seems to be not about causal relations, but about our knowledge of object and other, as well as our knowledge of past and future times. So an intriguing question: is causal information non-discoverable because object-other information is non-discoverable? Or perhaps because past-future information is non-discoverable? (Which thing can't we know via impression that leads us to miss out on natural patterns?)

Re section 5:

01 Hume's theory of belief (discussed in part 2) is quite naturalistic: "belief is nothing but a more vivid, lively, forcible, firm, steady conception of an object, than what the imagination alone is ever able to attain." So is it possible to have a belief about something as a result of reasoning?

Hume questions 1

I'm teaching a Hume seminar this Summer, hoping to both get to know Hume better and to help a small number of advanced BA students learn about his philosophy. I'll use this space to post questions that the first Enquiry raises (as well as the corresponding discussions in book I of the Treatise) as well as blog my way through some of the issues he explores there.

Re section 1, Of the different species of philosophy. Some questions: 

01 A reasonable being versus an active being: what is the distinction supposed to consist in?

02 Is philosophy that is clear to the ordinary person to be preferred to philosophies that aren't?

03 When Hume says "man," does he mean what we mean when we say "human"?

04 What makes a philosophy racist or sexist? How could one tell if it was either?

Re section 2, Of the origin of ideas. Some questions:

01 What does vividness in a mental operation show?

02 What sense impression corresponds to "minus"? "If"? "Could have been"? (If we say that imagination supplies that, how do we account for the truth value of the resulting proposition--especially in counterfactual cases ("The Rangers could have beaten the Penguins; then they'd be playing the Lightning in Game 7 tonight")?)

More from time to time.

The Somerset case 1772

Re: Somerset v. Stewart, Lofft 1, 98 E.R. 499 (1772).

Some quick readings about conceptions of law at work in the case:

Lawyer Alleyne for Somerset (a slave): slavery is not natural, but "municipal" (conventional); so, slavery cannot cross municipal boundaries (since conventions change from one municipality to another). This seems a perfectly fair conceptual point about the concept of slavery, though it's unclear to me what conception of law is at work; it seems compatible with both conventionalism and pragmatism.

Lawyer Wallace for Stewart (a slave owner): claims there is no law against, and so (given the acceptance of villenage, a sort of share-cropping in feudal times--not nice) there is no case against slavery. This reads pretty straightforwardly as soft conventionalism. 'Soft' because they are prepared to accept the existence of a supporting right even in the absence of positive law.  

Mansfield for the Court: since there is no English positive law on the matter, he reasons that there is no case for holding Somerset in slavery. (Strict conventionalist reasoning.) He considers, but ultimately sets aside, pragmatic considerations about cost and consequence of slavery. He does have a plain fact-y moment where he refers to the law as such.

Conference: Façades: the Architecture of (In)Authenticity

Façades: the Architecture of (In)Authenticity

7th Annual Philosophy and Art Conference (Stony Brook Univ., Manhattan campus)

March 28th-29th 2014

Venue: Bathhouse Studios, 540 E. 11th St, NYC

More information here.

(I'll be a faculty moderator at this conference. ST)

Here's how the organizers describe the conference: 

The façade—the aspect of a building that both looks at, and is seen from, the street—erects a philosophically and artistically productive ambivalence. Depending on the building’s purpose and comportment, the façade may bear little or no resemblance to the structure within. A façade may clearly indicate the purpose of a structure—such as those of government buildings, restaurants, or grocery stores; they may function as merely surface covering—such as the prescribed façades of residential buildings in some historic neighborhoods; or they may be transparent, "invisible," or feigning—such as the façade of a "speak-easy". As a metaphor, the ambivalence erected by the façade seems to extend to numerous aspects of our engagement with the world. Just as the façade both reveals and conceals the depth of the building behind it, so the face we turn towards others both reveals and conceals our feelings, intentions, and character. We invite artists and scholars to the 2014 conference in order to explore the vicissitudes of the Façade—its place, importance, and structure. Is it pernicious or profitable? Is it necessary or elective? Is it universal or an instance of anthropo-centrism? Do the various structures of façades delimit or facilitate expression or identity formation? Other aspects of the main theme to be considered include: public/professional vs. private/personal features of façades; the relation between the façade and the human face; the politics and ethics of façades.

Further questions include (but, of course, are not limited to):

• The Human Face: what does the face allegedly disclose? Is there a parallelism between psychoanalysis and portraiture? What is accomplished by the self-portrait, particularly in the light of Freud's claim that self-analysis is impossible? Consider also: the beautiful/ugly face; the "virtuous/vicious" face; the head (the eyes, the mouth, the hand) in contrast to the face; the (trans)gendered face; the face of the Other.

• Public & Professional Facades: is there something about our public buildings such that their “faces” should be consistent with their interiors? In other words, does the idea of the public bear a particular relationship to truth? Consider also: user profiles (FBook, LinkedIn, etc); chat-room avatars (trolls, noobs, etc); audience reception; documentation (passports, driver’s licenses, Instagram); the public/professional intellectual/artist.

• Private/Personal & Deceptive Façades: how are our homes structured differently vis-à-vis their facades? Must one have a face? Does one have a right not to be seen, i.e. to be "invisible" or to "wear a mask", so to speak? Is there a socio-political advantage or a cost to "wearing a mask," or having a "poker face"? What does the veiled face allegedly conceal (wedding veil; the hijab)? Consider also: the simulacrum and the original; forgery; ownership and intellectual property; commercial branding; pen-names/ pseudonyms; the doppelgänger; the myth of Janus; the uncanny.

• The Facade and Architecture: What does it mean to talk about the "art" of the facade? How can we understand the relation between a building and its face? And how has the function and meaning of this element changed over the course of architectural history, from classical to modern and postmodern paradigms? Moreover, what does it even mean to talk about the facade in terms of architectural authenticity? 

• The Politics of the Façade: How can a facade be a place of resistance or domination, surveillance or invisibility, subjugation or power? How does one encounter a society's culture or power distributions when encountering these facades? How is one to break away from domineering subjugating facades? Can one ever escape? By what means? Is there the ability to resist and how in the face of cultures that produce the same? Are we only left with imagination to break through these barriers? How do memories and nostalgia play in to the impression of a facade?

Dworkin: What is law? 1986 1

Notes on Dworkin's 1986 (Law's empire, Harvard UP).

Dworkin is as big a figure in American legal thought as there is. And this is his Big Book. Let me see if I can figure out what his main (famous) views actually come to, and whether or not I share them.

Start (in chapter 1) with what he calls the plain-fact view: "[t]he law is only a matter of what legal institutions...have decided in the past" (7). I suppose this is the legal realist's view (Holmes and the like), but in a nice move D remarks that the critical legal studies people--about as far left as you can go from the far right (?) realist view--are simply drawing radical conclusions from real law. I have to admit that this is a little opaque to me though. Says D: 

They say that past institutional decisions are not just occasionally but almost always vague or ambiguous or incomplete, and that they are often inconsistent or even incoherent as well. They conclude that there is never really law on any topic or issue, but only rhetoric judges use to dress up decisions actually dictated by ideological or class preference. The career I have described, from the layman's trusting belief that law is everywhere to the cynic's mocking discovery that it is nowhere at all, is the natural course of conviction *10 once we accept the plain-fact view of law and its consequent claim that theoretical disagreement is only disguised politics. (9-10)

Maybe it's just a verbal point, but the claim that the people who think the law is nowhere to be found are real law people sounds odd to me. But I suppose if you take them to be looking for real law, that's enough to make them realists of a sort. Okay.

D clearly is right, though, in his observation that lawyers are often realists in practice, but when asked about the goings-on of tricky cases, become nuanced "theoretical-disagreement" types. You can see him angling to get his own interpretive-type semantic-ish theory started.

D thinks critics might complain that he will misconstrue the legal process if he partitions off all but "lawyers' doctrinal arguments about what the law is" (12). Such a critic (sounds lefty) would worry that focusing so high-level and abstract threatens to "obscure--perhaps they aim to obscure--the important social function of law as ideological force and witness" (12). This of course is foreshadowing, but it is instructive: D will not aim to undress the real law and expose its true sordid character. Instead he will take the law into the abstract space of logic and philosophy of language, and explore it as fundamentally as it will tolerate.

Hart's rules and slave codes 2

Let me add to the sketch from my previous post. 

Primary rules (obligations): here are three--

[1] Principal's rule-- 

• If the price is P then Q; otherwise not-Q 
• [gloss: first-order universally quantified, conditional mood; Q is an agent action]

[2] Agent's rule-- 

• If the price is P do Q; else not-Q 
• [gloss: first-order universally quantified, imperative mood; Q is a state]

[3] Slave statutory rule-- 

• If any slave shall strike any white person then R 
• [gloss: first-order universally quantified, general conditional; R is a court officer's action]

Secondary rules (regulations): here is one--

[4] Slave statutory recognition rule-- 

• Premise 1: If "If any slave shall strike any white person then R" is S then T 
• [premise 1 gloss: second-order universally quantified, general conditional; S is a recognition-mark, T is a recognition-act]
• Premise 2: "If any slave shall strike any white person then R" is S
• [premise 2 gloss: predication]
• Therefore: T
• [conclusion gloss: assertion]
• [argument gloss: modus ponens]

Comment 1. Recognition-mark S is a unifier and rationalizer of the legal system in which it is a part. As Hart points out, such marks are what make a set of statutes not merely a set of primary rules but an actual legal system.

Comment 2. Is there any way to examine S? Yes and no. It can be examined by a Hart-style secondary rule of change (legislative review and repeal) or a Hart-style secondary rule of adjudication (judicial review). But there are two issues. First, any such review process runs the risk of reproducing whatever social pressures led to the recognition pressure in the first place. If primary obligations about how to control slaves were a product of custom and prejudice, lawmakers may very well be responding to those same customs and prejudice. What would prevent that from occurring? And second, the recognition rule, according to Hart, is both supreme and ultimate---there is none higher, and no other steps follow it. Unless there's a federal authority. Such an authority (its constitution, actually) would serve as an a priori constraint on S. But in the colonial era that authority is remote. And even if such an authority exists (as of course it does post-1789) what ensures that it will be shielded from those pressures? (The classic answer is the Bill of Rights; is that sufficient?)

Hart's rules and slave codes 1

I have three ideas, all a bit rough: 

1. Hart's distinction between primary and secondary rules can shed interesting light on the question of contractual obligations within any legal system that contains slaves.
2. The two sets of rules are phase-sensitive: that is, there's a diachronic aspect that is expressible in the model theory (or at least the metalogic) of such a legal system.
3. There's some sort of metaphysical constraint on conditions of legal action that's running around the slave codes---not just the obvious one about people not being ownable, but a more secular (deontic?) one; not there yet though.

Here are some expansions. First a bit on properties (item 3), followed by a bit on phases (items 1 and 2).

The deontic problem: what is the logic of obligation in both the moral and legal contexts of principals' actions? This goes directly to the primary basis of ex persona domini obligations, since it lies at the presumptive point of hand-off.

Principals act: moral action when act has F; legal action when act has G. Feature F places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (moral authority)). Feature G places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (legal authority)). In both kinds of contexts, the basic condition of action is the capacity to perform an act with F (the moral condition) and with G (the legal condition).

Antebellum legal cases are problematic in an obvious way, since some nominal humans are also nominal property, and thus violate a legal exclusion: no property can do F or G, while every human can do F and G. 

The remedy sounds clear and simple. Begin by acknowledging, restoring, and protecting the F/G capacity of every nominal human---that is, take humans to be legal and moral principals---and thus achieve a legal philosophical remedy. Introduce the concept of legal personhood (or at least principal-hood), and specify the criteria for satisfying that concept. Then work on the metalogic of federal law by amending the Constitution (the equal protection and due process clauses of the Fourteenth Amendment) so as to provide regulating principles for the constitutionality of statutory law (much as the first ten amendments are). A legal logical remedy is thus achieved. Introduce satisfaction conditions for a given body of law (model theory) and specify criteria of entailment for that body of law (proof theory).

Now on phases and rules:

Primary rules of obligation, to the principal, are universally quantified and hence essentially hypothetical. The agent takes them in the imperative mood, complete with the pragmatic aspects one would expect. In this form, they can be either hypothetical or categorical, depending on their teleological character. A contract is thus possible because of the confluence in an historical setting of logical-form facts and pragmatic facts. 

Secondary rules, to the jurist, are universally quantified and hence essentially hypothetical, but they regulate the predicates occurring in the primary rules. They thus take those predicates as arguments, issuing second-order rules. Moreover, they treat primary rules as existential and thus non-hypothetical, even as they themselves are hypothetical and universal.

Legal models may thus be said to have logical phases of a sort. During the primary dominant phase (when a given rule has primary character) the model has a very weak existential load, given their hypothetical and/or categorical character. But during the secondary dominant phase the primary takes on a significant existential load, while the secondary remains only weakly existential. Models containing such rule statements will vary widely, since satisfying those rules will be highly contingent on what phase dominance is occurring when the model is captured.

This can be walked back through slave statutes. The colonial period is highly unstable with respect to obligation rule phasing, given the outsized sociological facts around slave customs and the social dimensions of race relations; it is difficult to imagine otherwise. But even with the eventual ratification of the US Constitution and the institution of a federal framework for contract law, it remains an empirical question whether the rule phasing I am describing stabilizes. And after all, an eventual civil war settled the first batch of legal questions about slaves as rule phasing sputtered along, prima facie evidence for dramatic phase instability.

(An easy and obvious speculation: the emergence of Jim Crow laws during the segregation era is evidence of persistent phase instability in American law.)

Holmes on agency and contract 1891 5

The Hobbes/Holmes issues remain at the center of my thinking about contractual obligation. The Leviathan passage (chapter 16) is surprisingly complicating: while the master-family relation is surely natural, if anything is, and the agent negotiating the contract on the author's behalf is surely conventional, if anything is, the question arises whether the master-slave relation is natural or conventional. 

It is theoretically unstable at best, given the children-madmen-fools reasoning, since no slave is by that fact incapacitated, not even transiently so. Children pass through developmental phases, madmen are presumably seized from time to time by their madness, and fools are prone to folly qua fools (whatever that means). But it is not obvious what to infer from the slave condition as such vis-a-vis the master relation. 

Some slaves are fathered by their masters; some slaves are raised as children (in some sense) in the household with members of the master's family; many, most perhaps, will have given their labor to help make and sustain those intimate living arrangements that constitute the life of the master's family. Though there is theft, rape, and enslavement at the basis of all of this---all unconscionable and terrible, to be sure---it is still a kind of natural relation (in the sense of being extra-institutional). 

So the question for the Hobbesian account: is the slave a pre-condition for the institutional arrangement that is then codified? Or is the slave a consequence of the domestic arrangement that is then codified?

Quine's _Elementary logic_

The little logic textbook I wish I'd written was published in the 1940s by Quine. I'm using it to teach logic this semester (along with supplemental texts that do more formal things). I figured it would be useful to create screencasts on my iPad as I walk through the book. Those will be parked at my YouTube channel, and embedded at The Smokr Tumblr, the media-robust sibling to this journal. Here's a link to the first video, if you're interested.

Slave code sources 1

A short reading list on slave codes.

[1] Ingersoll, Thomas N. 1995. Slave codes and judicial practice in New Orleans, 1718–1807. 13 Law & Hist. Rev. 23. 

[2] Thompson, Joseph Conan. 1993. Toward a more humane oppression: Florida's slave codes, 1821-1861. 71 Flor. Hist. Q. 324.

[3] Schnapper, Eric. 1983. Perpetuation of past discrimination. 96 Harv. L. Rev. 828.

[4] Tahmassebi, Stefan B. 1991-1992. Gun control and racism. 2 Geo. Mason U. C.R. L.J. 67.

[5] Nicholson, Bradley J. 1994. Legal borrowing and the origins of slave law in the British colonies. 38 Am. J. Legal Hist. 38.

[6] Mills, Michael P. 2001-2002. Slave law in Mississippi from 1817-1861: Constitutions, codes and cases. 71 Miss. L.J. 153.

[7] Flanigan, Daniel J. 1974. Criminal procedure in slave trials in the antebellum South. 40 J. Southern Hist. 537.

[8] Watson, Larry Darnell. 1980. The quest for order: Enforcing slave codes in revolutionary South Carolina, 1760-1800. PhD diss., U. South Carolina.

[9] Wiecek, William M. 1977. The statutory law of slavery and race in the thirteen mainland colonies of British America. 34 William and Mary Q., Third Series, 258.

[10] Morris, Richard B. 1954. The measure of bondage in the slave states. 41 Miss. Valley Hist. Rev. 219.

[11] Fede, Andrew. 1984. Toward a solution of the slave law dilemma: A critique of Tushnet's "The American Law of Slavery." 2 Law Hist. Rev. 301. 

[12] Blanck, Emily. 2002. Seventeen eighty-three: The turning point in the law of slavery and freedom in Massachusetts. 75 New Engl. Q. 24.

[13] Bush, Jonathan A. 1993. Free to enslave: The foundations of colonial American slave law. 5 Yale J.L. & Human. 417.

Slave codes and obligation papers

I can't tell how many papers this will be, but five topics are attracting five clusters of argument in my notes and my thinking:

1. Ex persona domini obligations. [Holmes]
2. Uncertainty in rules of obligation. [Hart]
3. Stasis in rules of obligation. [Hart]
4. Inefficacy/inefficiency in rules of obligation. [Hart]
5. Thrasymachus-style power arguments and the slave codes. [Plato]

I'll see if I can get 5000 words in good enough shape to show around by the weekend.

Thrasymachus and the slave codes 2

Continuing in a hypothetical mode in reading slave codes, thinking about Thrasymachus, and turning to justice questions...

How can justice-is-the-might-of-the-stronger be made intelligible? Especially if you think, as I do, that Socrates is right, and that he is a champion of reason, and he is not an asshole or thinks slaves ought to be subjugated, or anything like that. But you can see Thrasymachus' view as being a heroic defender of the underdog if you regard the slave as a kind of powerful figure. The slave is not the victim of power but the possessor of power. Clearly the slave codes are written to counterbalance the slave's power, after all. You don't fear something unless it has power. And if nothing else, the slave has the power to provoke fear. But the slave also has power to create mischief. A slave revolt is at least that. A kind of terrorizing power. Of course it could be more than that if the slave can set fires and commit murder, all of which certainly happened during uprisings.

So in that sense Thrasymachus' position can be understood more sympathetically. If the power of the stronger is de facto, then in a slave-owning society the owner has it because they control the whereabouts of the slave. The legislator has it---in a way---but that would be de jure; I suppose the same is true of the sheriff. The slave has it because of the nature of the threats they pose.

One can read Thrasymachus as saying that whoever actually has the power ought to retain that power, and that that is how we decide what is just. It's them carrying out the dictates of their power---essentially, whatever their whims are. A tyrannical theory of justice. But you can regard Thrasymachus as endorsing the efforts to unseat power, and thus endorse the power that the weaker have to overthrow the stronger. It sounds contradictory---I guess it is---better to think of the weak force as still being a kind of force, and that in the struggle it becomes strong (or at least stronger) and that would be the fulfillment of justice. We can think of this as a kind of Thrasymachus-ish theory of justice as applied to the Negro slave as endorsing the effort to unseat power and replace it with their own power. If that's a consistent reading we can take Thrasymachus as endorsing slave revolts. And isn't this after all some of the early Hobbes? Maybe Foucault as well. Thrasymachus (and Plato) predate(s) both, of course. 

But if that is what justice demands---the rising up of the weak over the strong so as to become strong? Then I think it's kind of interesting. The chief complaint, though, would be the complaints that Socrates actually has. 

He has two kinds: the first is conceptual, that the concept of justice precludes any concept of de facto strength, let alone the efforts to achieve de facto strength. So the doctor is never acting to make themselves advantaged, but is always acting on behalf of the patient. That after all is the function of a doctor---same thing. 

The other kind of complaint is something like, if you make justice parasitic on de facto strength, then you are (in a sense) limiting justice to what the strong can achieve. (Is this in Book 1? I'm not sure.) So not only are you running afoul of the concept of justice, but you're also shortening justice. So if the slave revolts, and takes over the municipality (?) in which the plantation is located, would we say of that that that is justice? But then you have the problem, that that is only as good as the revolting slaves' ability to hold the fort. In a sense justice would be achieved only to the extent that the slaves could withstand whatever counter-revolt efforts occurred. 

Whereas on the kind of view that Socrates endorsed there would be some sort of appeals process. If justice has been flouted, then there would be an appeal one could make. This is the modern understanding of justice. You can make a case to a higher body and they could rule on the merits, and so on. But justice-as-strength does not account for that. 

But I'm not now sure that Socrates makes anything like this sort of objection in Book 1. It sounds more Kantian actually. But I can't imagine that Socrates does not have something like this in mind. Thrasymachus could respond to this last kind of objection and say that if you understand the legislator as having a kind of strength (as in the strength of a ruler) then the goal of a successful, full uprising by a slave not just to have sufficient guns and firepower to shoot anyone who comes close by the plantation, and thus achieving justice by securing the plantation due to the force of the weapons being used, but it would also be to take over the state house, and becoming a legislator---in a sense, becoming a tyrant. And who is above a tyrant? You can say whatever you like about courts and due process of law and all that, but in a tyrant state, those institutions (and everything else) will serve the tyrant. And so the ultimate justice would be to become the tyrant, rather than being able to bring a case to court. (I remain unsure whether Socrates makes this kind of point.) But if this complaint were made, I imagine Thrasymachus could make the kind of point like I just described. 

Thrasymachus as justice theorist for the slave: once you pose the question this way, then the Socratic line of reasoning becomes kind of irritating. Because what he is doing is he is presenting obstacles to the success of the one you are rooting for. And every modern reader is going to know how the story ends. 

Thrasymachus and the slave codes 1

Let me take a brief left turn (in the sense of the "lefty" natural law theorist in the legal-theoretic discussion of slave codes). I'll revisit a bit of Plato's Republic, book 1, especially the exchanges between Socrates and his sophistic nemesis Thrasymachus, the relativist who holds so untenably that justice is the power of the stronger. In a later post I'll tie this back to the "right-wing-ish" legal realist Holmes and Hart. (Of course I mean all of this playfully...) 

I'm also writing in a more speculative mode. I believe in philosophy (as in law) that data should always lead, and theory should always follow. I don't yet have all the data, though. So let's call these hypotheses.

What strength or power does the "Negro" slave have? (I use the term of the American colonial period.) Put crudely, the Negro slave is a kind of beast to be controlled. Slave codes were clearly intended to cause the threat posed by the slave to diminish. If the Negro is thus understood animalistically, then, rather than being a full-on, full-blown author of action, the Negro is an object to be figured out and controlled. The Negro thus becomes an object of the law only when their owner cannot fully control them.

So, the Negro becomes dangerous, and because of that the law has to step in. Otherwise the law defers to the owner's attempts to control them. The slave codes thus describe the limits of slave punishment and handling, understood as reaching past the legitimate efforts an owner might expend. The slave is thus a beast, but that beast-character does not obliterate all limits of actions brought against them. The slave is thus like the horse, plus something: a restricted sort of actor, and the law makes room for that. 

Interestingly though, the Negro only becomes a problem for the law when there is a disruption, and the threat to social order that may result. So there is no issue apart from threat. In a way, there is no description of a normal life that concerns the law. So the property owner can come under law (some sort of regulatory regime) in virtue of making contracts, and the assumption of liability that results. In this regulatory role the law enters everyday life, not just when there is a violation or threat. Everyone thus has the expectation that a contract will be honored. The ordinary business of life here described and protected is something like what Hart has in mind in his notion of primary rules of obligation.

But in the slave case all of that is absent---or at least distorted. The slave is understood as a threat, as a creature capable of posing a threat, like a potentially threatening animal. And yet not too wild an animal. No one in the discussion believes that the Negro is an animal entirely, but that they are a chimera: half-animal, half-human. This theoretical confusion is of course expressed in the reasoning of lawmakers. Once you have this kind of chimerical existence, you get all of the other crazy-ass stuff.

Thrasymachus gets interesting here. Using a different sort of lens than is usually used, he may be seen as a heroic philosopher who models and champions the force of the brute as the basis of justice. Perhaps he may be read consistently this way, and so provide a way to understand the slave as legal actor. (Socrates certainly did not see him this way: he excludes Thrasymachus from the dialectic of reasoning, or at least engages him only problematically. No Socratic is going to like the move I'm toying with here.)

Every philosopher who studies the Republic thinks of Socrates as the heroic figure in the dialogue. I am no exception. But reading Book 1 as a kind of vilification of Thrasymachus and his view, and then trying to resuscitate his view---or at least gloss it in such a way that the view can be regarded as heroic from the standpoint of the slave is kind of interesting. All of the energy he puts into his view, all of the off-stage stuff, the stage direction let us call it, all of the philosophers who read it will ignore to focus on the reasoning part. But the stage direction is revealing. It is clear that Plato is trying to make Thrasymachus out to be some sort of beast, not unlike the role the Negro plays in the colonial period of the American enlightenment. The beast, slightly out of control, a sense of threat and danger. The wild man, undermining the project of elenchus, thwarting the march of reason toward truth. One cannot engage in the logical pursuit of truth, since one has to suspect that Thrasymachus is undermining that. And he even seems to say as much: "okay, have your little feast, Socrates, whatever you say. You've won, even though I don't really believe that you've won.'' He is the wild beast who cannot be reasoned with---it can be soothed, but cannot be shown the truth, cannot be part of the pursuit of truth. The more forceful character wins because they shut down the opposition. 

If Thrasymachus is the hero, the reader has a conflict, because Socrates---the voice of reason---is trying to shut down the hero.

(I guess I'm being a bit rhetorical as well as hypothetical.)

But then this becomes instructive in trying to study the colonial slave codes. Any modern reader will read the codes as the quasi-rational approach of superior force---a stronger force---trying to put down the character you are really rooting for, the slave. No one is going to read the slave codes and think, yeah, that's a good idea. Something that, if a white person did it, they would do a little time in prison, whereas if a black person does that same thing they would be sentenced to death, a distinction written directly in the penal code. Of course not. 

So reading Thrasymachus this way is like reading the slave codes. How it is for the slave in the cold hard light of rational law as one squirms and shudders. 

Holmes on agency and contract 1891 4

Lawyers like to think of Holmes as a "legal realist"---a term that sounds off to a philosopher, I think. Part of this is verbal, but it seems more accurate to call him a "legal pragmatist": circumstantial evidence exists (he was a member of the Metaphysical Club with James and Peirce and the rest), but so does textual evidence (his emphasis on common-sense in judicial reasoning, his eschewing of abstract principle, and so on).

I guess I join Brian Leiter and others who've done a lot of work to call attention to this, though Leiter (among others) has spent effort to clear things up and help the "realist" out a bit (Leiter, 2001, "Legal realism and legal positivism reconsidered," Ethics 111: 278-301). A quick look at his paper pre-convinces me that he is right. (A longer read will settle my thinking for real.) The gist of my thinking is that Holmes can be said to be pragmatist as a matter of approach to legal reasoning, while Hart and the positivists are giving a theory of the nature of law itself. Leiter holds that view, but goes much further in showing how the two can actually depend on each other. I need more to persuade me on that point.

In any case, Holmes' approach to law is clearly common-sensical and unprincipled (not in any anarchic sense, but in an anti-positivistic sense). Why not call this pragmatist?

Now the important part of this point. Holmes effectively shuts down the two familiar moves in legal philosophy---that of the positivist and that of the naturalist. Is this a good thing? We'll see. (But the Leiter caveat from earlier: maybe the realist actually needs a version of the positivist's appeal to rules. This is getting a bit complicated and will need its own post later.)

The positivist---take Hart as a paradigm---can make an appeal to the rule structure that constitutes law, and argue that those rules (properly understood) both guide and enable the jurist's reasoning. But Holmes can't make this move given his rejection of such legal abstractions. (Could he respond that the rules of the positivist aren't necessarily problematic---perhaps they are not necessarily abstract? Hard to see how he makes that move.)

The appeal to morality and the common good---the sort the natural law theorist will want to make---doesn't seem available to Holmes either.

The urgency to figure this out comes in part from thinking about how legal philosophy ought to explain the slave's place in the republic. 

At a high theoretical level the question plays out as pressure to moralize the law in the face of an egregious set of statutes (slave codes, Jim Crow laws). MLK's famous civil disobedience arguments in Letter from a Birmingham Jail represent this (leftward?) pressure on the Holmes-style legal theorist. 

But at a lower theoretical level is Holmes' discussion of contract law and its origins in Roman slave-master relations. If masters took their slaves to be agents for the purpose of making contracts, then the obligations thereby created (a cornerstone of contract law) arise pre-conventionally---at least to the extent that the families that slaves joined are pre-conventional. If so, then Holmesian contract law is naturalistic, a seeming violation of his realism.

This kind of reading is complicated by Holmes' approving quotation of Hobbes, though. Here's Hobbes:

Likewise children, fools, and madmen that have no use of reason may be personated by guardians, or curators, but can be no authors during that time of any action done by them, longer than (when they shall recover the use of reason) they shall judge the same reasonable. Yet during the folly he that hath right of governing them may give authority to the guardian. But this again has no place but in a state civil, because before such estate there is no dominion of persons. (Hobbes, Leviathan, chapter 16; emphasis mine).

Here Hobbes claims that there is no dominion of persons in the state of nature, and hence (I think) ex persona domini powers are non-natural. If so, then Holmes can be taken as claiming that the slave-master origins of contractual obligations are conventional after all.

Have to figure this out. 

Holmes on agency and contract 1891 3

Questions raised by the slaves acting ex persona domini principle: 

1. That slaves personify masters---is that pre-contractual, or a consequence of the contract made between master as slave-purchaser and slave-seller? (By pre-contractual, I mean does it result from something other than the contract; I don't mean to suggest it's already operative prior to the slave purchase, since no ownership would exist yet.)
2. The slave enjoys an advantage of directness (family-member-like, unlike strangers). Is this a species of the idea that a man is head of household, the "representative" of the woman and the children?
3. Slaves complicate the legal philosopher's task of inventorying the short list of legal concepts---let's include three to start with: the concept of the author of an action, the concept of property, and the concept of contract. Slaves muddy all of these.

Holmes on agency and contract 1891 2

Notes on Oliver Wendell Holmes, "Agency" 5 Harv L Rev 1 (1891-1892).

Last post I briefly introduced Holmes' view that an agent has all and only those powers granted by the principal. He discusses an anomaly though which is instructive: "the rule that an undisclosed principal may sue or be sued on a contract made by an agent on his behalf" (1).

(A helpful discussion by Cristine Christodoulou is here; a law review article by Randy Barnett is here; an older paper by Grover Heyler is here; and of course Wikipedia is here.)

The oddball part of this is that an undisclosed principal can, in a sense, be party to a contract they didn't literally make (though their agent did). An undisclosed principal, aside from the havoc they represent in contract law, also runs counter to the philosophy of law, in that authority is natural (as I asserted in my previous post) but is conferred in virtue of the public recognition of that fact (as Holmes argues in his 1891). If a principal is undisclosed then there cannot be public recognition that they have conferred power on to an agent; hence, there was no such conferral, and the resulting contract is invalid.

So what to make of this anomaly of US and British law?

Let's first appreciate the bits of the philosophy of legal logic Holmes helps himself to in his discussion of public understanding (as the ostensive extension of powers).

1. Conferral is public and objectively accessible. The meaning of the powers is not impressionistic, mental, or private.
2. Ostension as pointing is pure referring and assigning; if it is mediated, it is the least mediated of all significations.
3. Extension as the objects referred to (that is, the agents granted this-or-that power).

The anomalous piece of law, observes Holmes, would "seem to follow very easily from the identification of agent and principal," a relationship resulting from the "power of contracting through others, natural as it seems, [that] started from the family relations, and that...has been expressed in the familiar language of identification" (2). The slave is the extension of the persona of the principal, growing from the family nexus in which slavery would have taken place in the Roman context. 

[B]y the Roman law contractual rights could not be acquired through free persons who were strangers to the family. But a slave derived a standing to accept a promise to his master ex persona domini. [ST--that is, slaves personify masters]...An obligation may be acquired through slaves or free agents in our power, if they take the contract in the name of their master. (2)

Not only did slaves thus have a privileged legal role in contract-making in ancient Rome (according to Holmes), but they did so in the context of their being identified with their master and their family. In a very real (and perhaps natural) legal sense the slave serves as a legal extension of the master. The transitivity of obligation thereby achieved suggests a domestic and intimate (albeit problematic) source of obligation in the natural state.

Holmes on agency and contract 1891 1

Notes on Oliver Wendell Holmes, "Agency" 5 Harv L Rev 1 (1891-1892).

"A man is not bound by his servant's contracts unless they are made on his behalf and by his authority, and that he should be bound then is plain common-sense." (1)

A pair of central concepts in the theory of legal obligation are that of [1] the authority of the individual acting as principal and [2] the transitivity of that authority once delegated to an individual acting as agent. 

Regarding [1]: this is a bit of natural theory, in that a person acting is the author of their act, independent of any institutional recognition of such authority; it is in that sense that it is natural, rather than conventional or institutional. One is author of their actions even in a state of nature. If that is so, then whatever obligation issues from authority does so even in a pre-institutional state of nature; thus, author-derived-obligation is natural.

Regarding [2]: it is less clear that this is natural, since transitivity is a logical property owing to the logical form of authority, and it is a matter of the philosophy of logic whether such a thing as "the logical form of authority" could be natural. Besides, something feels different once we enter a world of conferred obligations: the social dimension invites regulation (something like a framework of protection against abuse or whatever, or else something like a guarantee that a breach-of-contract proceeding could be carried out, etc.). But what exactly is it that "feels different" here?

I think it may be more than just the social as such. After all, the context of original authority is social as well, as critics of liberal legal and political theory are fond of pointing out. They are clearly right. We are born in families, we discover our egocentric selfhood even as we interact with caretakers and siblings and the rest, and we come into childhood and adolescence forming our character etc in relation to those around us. To hold that authority is natural for being non-social while holding that transferred authority is non-natural for being social would invite these well-founded criticisms.

I think it may be more due to the fact that we transfer authority via acts whose structure is largely linguistic---this is close to circular; I'll fix it as I go---and that are understood by the public that way. Says Holmes:

It is true that in determining how far authority extends, the question is of ostensible authority and not of secret order. But this merely illustrates the general rule which governs a man's responsibility for his acts throughout the law. If, under the circumstances known to him, the obvious consequence of the principal's own conduct in employing the agent is that the public understand him to have given the agent certain powers, he gives the agent those powers. And he gives them just as truly when he forbids their exercise as when he commands it. It seems always to have been recognized that an agent's ostensible powers were his real powers; and on the other hand it always has been the law that an agent could not bind his principal beyond the powers actually given in the sense above explained. (1)

Ostensible authority---authority conferred by explicit action or gesture (on the model of pointing)---is the determinative category, and not any merely intended conferring of authority. (No one can appeal to a mere intention to have so-and-so represent you in a contract negotiation, or else some sort of preference, or whatever. Legal obligation cannot be private and mental, but must be demonstrated and public.) But it doesn't stop there. If "the public" comes to form the belief that so-and-so has conferred authority on this one or that one, then they have. The public understanding of such a conferral is sufficient for that conferral to have become effective. 

But why should that be?

Here is where Holmes' pragmatism becomes very obvious. What other standard could the law use? If the issue is the intention of the one who has authority, then the law is contingent on a reading of something unknowable apart from the very party who is interested in the matter, and thus has a motivation to affect or alter it. That would obviously be a disaster. 

The problem though for this sort of pragmatist starting point is that there's some sort of peril in giving the public the arbitrating role too. The public is not a singular mind, after all, and so may hold conflicting understandings about the conferring of authority (or any other matter). Besides, those who constitute the public may themselves be interested parties, and so may have a stake in how the matter gets settled.

A more generous reading to Holmes is to take "the public" as a kind of quasi-mind, a viewpoint taken from the general good. If we idealize the observer to the conferring of authority, we can abstract away any contingent interest such an observer has in the proceedings at issue, and thus arrive at an unsullied understanding of the conferral of obligation.

But pragmatists tend to hate that kind of abstract move; more on that when I look at Holmes' "Path of the law" essay.

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More video posts (they run 11 total--I'll clean all that up later...) at The Smokr Tumblr.