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Samizdata quote of the day

[Judge-only trials] also misses the actual point of a jury. We might think they’re there to evaluate evidence, decide what is right or wrong, to decide upon guilt of the accused. But they’re not. They’re there to decide whether a crime has been committed. Which includes telling the law, the judge, the politicians and the entire system to bugger off as and when 12 good men and true decide that this isn’t a crime.

Sure, the British legal system absolutely hates any mention of jury nullification. But that is what they’re actually there for. Which is why we shouldn’t do away with them.

Tim Worstall

48 comments to Samizdata quote of the day

  • James West

    Unfortunately, that also leads to situations where innocent people are convicted even in the absence of any real evidence, because a jury is often even less rational than the society from which it is drawn. If you doubt this, check out the conviction of cardinal George Pell. Sanity only prevailed at the last level of appeal, and after a year’s wrongful imprisonment.

  • Does anyone claim any kind of trial is perfect? But I am more than willing to contend a jury trial is better for the reasons stated by Tim.

  • Paul Marks

    I have served on a jury – and part of that is keeping the legal principle that the Prosecution must prove their case in mind. A gut feeling that “he is guilty” is not enough – if the Prosecution do not prove their case, then the accused must be found innocent.

    But Tim Worstall is talking about more than that – he is pointing to the basic problem of UNJUST LAWS.

    One must remember that F.A. Hayek (drinking from the poisoned well of David Hume) was WRONG – liberty on this island was not some sort of “evolved” accident, the “product of human action, but not human design” – liberty on this island (or anywhere else) was the product of human design, intentional action by people who know what they wanted – and what they wanted was liberty.

    For example, Sir John Holt – Chief Justice from 1689 to 1710 (yes he is the Glorious Revolution “Old Wbig” type).

    Before Sir John Holt the accused in serious crimes appeared in court in chains (thus poisoning the jury against them) – and in such crimes as treason the accused were not even allowed defence council. John Holt took the legal fiction that the judge was the defender of the accused in a serious trial – and made it real, so real that it was eventually accepted that the accused could have defence council (so that the judge would stop attacking-the-prosecutor from the bench).

    John Holt was not some impersonal “evolution” and nor did he represent some new “forces of production” (England was not an “industrial society” in 1689 – or in 1710). John Holt was a human being – a human mind (a soul) with intentions – and his actions were meant to further the cause of liberty, which is what he did.

    But it is NOT just a judge that can do this. Unjust laws can and SHOULD be opposed by juries.

    Both unjust laws – for example that the expression of certain opinions are “crimes” (the doctrine of the 1965 Act in the United Kingdom – but greatly expanded by later Acts), no jury should convict for such a “crime” because it is not a crime at all. Parliament (as Sir John Holt repeatedly pointed out) does NOT have unlimited powers – it can not make 1+1= anything other than 2 and can not repeal the fundamental principles of natural justice (the basis of the Common Law) as substitute its own insane whims in place of the fundamental principles of natural justice.

    And something can be a real crime and still have UNJUST PUNISHMENT – a punishment out of proportion to the crime committed.

    For example, Parliament (by a series of Acts) made the punishment for even quite minor crimes DEATH.

    Steal a purse with a nice sum of money in it – DEATH. Not a flogging or something like that – DEATH. Steal a horse – again DEATH.

    Juries often refused to convict when they had a “hanging judge” who was actually going to take the insane ravings of Parliament seriously.

    This is why Sir Robert Peel (another flesh and blood human being – not a “force of evolution”) had the Acts of Parliament changed in the 1820s – because juries were refusing to convict when they had a “hanging judge”.

    When the punishment is out of all proportion to the crime, or the “crime” is not really a crime at all – then juries should indeed NULLIFY.

  • Matthew

    The more levels of checks, the better. A jury interposes another layer of fact checking between the accused and the final verdict. As an attorney, I would never waive my right to a jury trial.

    Almost all the arguments for judge only trials boil down to expediency and efficiency. I do not want an efficient judicial system. I want a just judicial system or as close to one as can possibly be managed.

    One last point, juries are a lot harder to manipulate politically. Judges are typically sensitive to the political tides and currents. They are a lot easier to pressure into returning a ‘correct’ verdict than both a judge and a jury.

  • Paul Marks

    As for David Hume – remember he was David “Euthanasia of the Constitution” Hume. Going to that man for a account of Constitutional liberty is not a good idea – because he did not care about it.

    Nor did Mr Hume believe that humans made real choices anyway (Kant was right about this – “compatiblism” is a hollow fraud), he used more polite language than Martin Luther and Thomas Hobbes, but he did not believe in human BEINGS any more than they did.

    The despotic regimes of Continental Europe (of that time) with their torture to get confessions (which were admissible in court) and their lack of juries to limit the state make a lot more sense if you do not believe that people are really people.

    Louis XV was a much nicer man than Louis XIV – but he did not reform France, both the economic system (dominated by government regulations and government backed compulsory guilds) and the legal system, remained that of the “Sun King”.

  • Flubber

    Given the recent spate of dodgy rape cases that were swiftly booted by juries, does anyone suspect that a judge trial might have seen a lot more convictions, especially if said judge had his/her eye on a promotion?

  • Mr Ed

    There isn’t really a British legal system, there’s England and Wales with juries of 12, Northern Ireland with juries and then Diplock courts (judge-alone due to terrorism) and Scots law with its own quite distinct law, standards of evidence and verdicts, including ‘not proven’ and juries of 15. Scots criminal law stops in Edinburgh at the High Court of Justiciary (apart from a ‘Human Rights’/devolution power-grab by the UK Supreme Court). If you are convicted in Scotland, you can’t go to the Supreme Court (apart from the exception) and you never could go to the House of Lords to appeal.

    I think that the zenith of the jury in England was the trial of William Penn, where the judge locked up the jury for contempt for failing to convict, a verdict overturned on a writ of habeas corpus. The jury should be sovereign in court, able to imprison the judge for contempt.

    That trial showed that Magna Carta did not die in vain.

  • England’s tradition of jury nullification has a long & (mostly) glorious history.

  • Agammamon

    James West
    May 1, 2020 at 12:35 pm

    Unfortunately, that also leads to situations where innocent people are convicted even in the absence of any real evidence, because a jury is often even less rational than the society from which it is drawn. If you doubt this, check out the conviction of cardinal George Pell. Sanity only prevailed at the last level of appeal, and after a year’s wrongful imprisonment.

    We throw people in jail by the truckload for smoking a plant.

    The sad fact is that its an tiny, tiny percentage of ‘innocent’ people that are getting railroaded by a jury that wouldn’t also have gotten railroaded by a judge – because that person did something that shouldn’t have been a crime in the first place or, more commonly, through prosecutorial misconduct.

    Judges are even less of an impartial arbiter of court proceedings than the ignorant rubes in the jury box.

  • Snorri Godhi

    As for David Hume – remember he was David “Euthanasia of the Constitution” Hume. Going to that man for a account of Constitutional liberty is not a good idea – because he did not care about it.

    I have a few questions for Paul Marks:

    1. did you read Hume’s essay, Of the Independency of Parliament?

    2. did you read Hume’s essay, Idea of a Perfect Commonwealth?

    3. did you read any of Hume’s political writings?

    4. did you read any of Hume’s writings?

  • Snorri Godhi

    Nor did Mr Hume believe that humans made real choices anyway (Kant was right about this – “compatiblism” is a hollow fraud), he used more polite language than Martin Luther and Thomas Hobbes, but he did not believe in human BEINGS any more than they did.

    A few more questions for Paul Marks.
    NB: unlike my first set of questions, these are not meant to be traps for the unwary.

    1. did you actually read what Kant wrote against “compatibilism”?

    2. what do you think about Thomas Aquinas’ theory of liberum arbitrium?

    3. what do you think about Samuel Clarke’s concept of moral necessity?

    Bonus question: I assume that you are not familiar with the Newell/Simon paradigm, but if you are, then i’d like to know.

  • Fraser Orr

    @Matthew
    Almost all the arguments for judge only trials boil down to expediency and efficiency. I do not want an efficient judicial system. I want a just judicial system or as close to one as can possibly be managed.

    Evidently you are a lawyer, so let me pose my standard lawyer question to you. Famously Blackstone admonished us “let ten guilty escape lest one innocent suffer.” But is ten the right number? Should we let one hundred guilty go free lest one innocent be punished? How about a thousand guilty, or a million guilty? The only way we can guarantee that no innocent be punished (by the state) is to have no criminal prosecutions at all.

    But of course if we have no prosecutions at all, (or if we let ten guilty go free) there are second order consequences to that. Those ten guilty could well go on an commit crimes that cause ten innocent to suffer. Does the innocent suffer less because he was deliberately harmed by the criminal instead of accidentally punished by the state? Should we adjust the ratio based on the likelihood of recidivism? (For example, someone who allegedly murders her husband for the insurance money is much less likely to murder again than a gangster who allegedly murdered someone in a bad drug deal. By the “minimizing total harm” approach, should the burden of proof be higher on the first rather than the second, since the consequences of an erroneous acquittal are lower? I don’t think it should, but I offer it is an interesting hypothetical.)

    It actually reminds me a lot of what is going on in the world today. Do we lock everyone up in their houses in case an old person catches a virus and dies? Should we not balance that against the fact that locking people up in their houses kills them. (For example, I have read that in the US approximately 50% of people are not going to their chemotherapy appointments because of this virus.)

    There is, I understand, an idea of 99% certain of guilt in a criminal case. But that is not realistic. You can’t really measure it like that. What you can do is put more an more barriers in place to increase the difficulty of a conviction, which, although a blunt instrument, does give you some ability to tune the ten guilty/one innocent ratio.

    Of course that assumes that the legislature and courts necessarily act in good faith, which I doubt is true. One side wants less people in prison for political reasons, and the other side wants to be tough on crime for different political reasons. So perhaps to ask for optimization against any objective standard of “what is best and fairest” is whistling in the wind.

    Nonetheless, I don’t know the answer to this question, presumably though, as a lawyer you have thought about it a lot, so I am curious to hear your thoughts.

  • Matthew

    @Fraser Orr, Justice isn’t a science and I do not think you can quantify it. It is necessarily imprecise. The Blackstone quote makes for a great talking point but as you point out it leads to a reductio ad absurdum argument. So let’s not go there. My counter question is how much justice are you willing to pay for? Should someone accused of murder (generally considered the most heinous crime) have access to forensic investigators gratis? Are they entitled to the counsel of their choice, again gratis?

    I don’t know. Currently in both the UK and the USA, defendants can get representation for free if they can not afford it under certain circumstances. But they get very limited legal help when they do get it.

    I’m willing to pay for the current s4et up in my local jurisdiction which includes the right to trail by jury.

  • bobby b

    “Of course that assumes that the legislature and courts necessarily act in good faith, which I doubt is true. One side wants less people in prison for political reasons, and the other side wants to be tough on crime for different political reasons.”

    In a democracy, isn’t that the essence of good faith? To do what the voters desire?

  • The reason why Jury trials rather than Judge-only trials are essential is (as Tim rightly says) the ability to tell those that would deign to rule us to get stuffed without resorting to rioting in the streets. The Jury box is one of the essential pressure release valves that stops us being French.

    https://en.wikipedia.org/wiki/Four_boxes_of_liberty

  • Tom

    When I studied legal history as part of my law degree, what is here called “jury nullification” was called criminal equity. I much prefer that name.

    As an aside, I have always found that attitudes to jury trial are a good predictor of political orientation. Those who believe random selections of ordinary citizens can’t be trusted are often incipient totalitarians — they may claim to love the masses but they have snobbish contempt for them. Those who trust juries tend to be liberty-minded.

    The jury is the only British institution to retain my confidence. If charged with a crime myself I would want a jury trial.

  • Ferox

    There is a negative side to jury nullification as well. Ethnic groups hostile to one another may choose to refuse to convict defendants of their own ethnicity when the victim is of the other ethnicity, regardless of the evidence.

    This is not a good thing in the long run, as it undermines public confidence in the courts as a source of justice.

  • Ethnic groups hostile to one another may choose to refuse to convict defendants of their own ethnicity when the victim is of the other ethnicity, regardless of the evidence.

    Sure, but it is available to both defence and prosecution to request a change of venue to avoid this and since neither wants to face allegations of not having done everything to win the case they will do this preemptively if their is any justification at all..or none…

  • bobby b

    As a practical matter, if you’re just a work-a-day defense lawyer without the rich clientele, you seldom ever see funds available that could pay the fees and costs for a venue motion, which isn’t a cheap motion to bring in the first place.

    So it’s one of those “you can get as much justice as you can afford” situations, and people who commit crimes generally aren’t flush to begin with.

  • @Bobby B:

    Yes and therein lies the rub, because certainly in the UK if the Crown Prosecution Service were to decide that they were more likely to win a case if it were held at St. Albans Crown Court rather than Luton Crown Court* because of the likelihood of witness tampering / contaminated juror pool, etc. then, provided the judge overseeing the case agreed, money would be no object, since “The Crown” (i.e. taxpayers) are the ones footing the bill.

    If the defence wants to move the case for the same reason then it is a slightly different matter with respect to costs, but in terms of judicial weight it should be neutral (should being the operative word).

    I presume the same problem applies in the US in respect of inner city African-American communities as it does without our own ghettos of Islamic diversity.

    * – The number of defendants pleading guilty is lower than the national average, with the senior local judge commenting that this is thought to be because of the historically high level of jury acquittals in Bedfordshire.

  • Nullius in Verba

    “There is a negative side to jury nullification as well. Ethnic groups hostile to one another may choose to refuse to convict defendants of their own ethnicity when the victim is of the other ethnicity, regardless of the evidence.”

    I’ve heard it said that one of the reasons they didn’t bother trying to prosecute Hillary for the email scandal was that she’d be tried in Washington DC, a heavily and fanatically Democrat area, and no jury selected from there would ever convict. I have no idea if that’s plausible, and I’m pretty sure there were lots of other reasons, but still…

  • Paul Marks

    Mr Ed – quite correct.

    Snorri – I stand by what I wrote.

    Mr Hume did not really care about the Constitutional liberties of this island (in England or Scotland) – he was, essentially, indifferent. He might say all sorts of nice things in essays – but he is not going to risk death, so his words carry no conviction (they are without value). There is no life blood in his words.

    Even Dr Johnson, the life long Tory, refused any political kinship with David Hume – this is because Dr Johnson understood what Mr Hume really was.

    David Hume would no more have picked up a weapon and fought for the liberty of other people than Thomas Hobbes or Jeremy Bentham would have. In the great struggle between good and evil that each person must fight every day (if only within their own soul) David Hume was essentially AWAL

    You can not get to the Bill of Rights (British or American) from the philosophy of David Hume – and this starts at the foundation, at what Mr Hume considered a human to be. What used to be called in philosophy “the nature of man”.

    I repeat Dr Johnson (Tory though he was) understand what David Hume really was (and rejected it with horror) – and, sadly, you do not understand Snorri.

    It is not the atheism of Mr Hume that is the problem. It is his denial of the human soul (the “I” itself) even in the non religious Aristotelian sense. From this all else follows.

  • Paul Marks

    I own a sword (one of several that I own) that is of the fashion that was popular in the time of Edmund Burke (basically the sword he used, along with a musket, in defending the homes of people under attack in the Gordon Riots of 1780), it is broader at the base than the rapiers that were popular on the Continent.

    I am no good with it (not at all) – I am a clumsy oaf who is just going to get himself killed. But there you go.

    David Hume was a charming man (Edmund Burke really liked him) – but if something serious kicked off, Mr Hume would not be there.

    Perhaps I am mistaken, perhaps I am being hard hearted and unfair.

    If so I apologise.

  • Paul Marks (May 1, 2020 at 1:28 pm et seq.), I’m on Hayek’s side of the evolved versus designed argument for the common law. IIUC, your own position puts you closer to John Stuart Mill, who argued that historical legal codes were designed and seems to have favoured the idea. Of course, since a code like England’s Common Law evolved through the accretion of many principles and precedents (including the weeding of some) it was created by many tiny human designs – or decisions at least. The difference is between a code that is designed by what Mill called ‘the Many’ over centuries and a code which is the product of what Mill called ‘the more highly gifted and instructed Few or One’ at a given time, e.g. England’s Common Law versus the Code Napoleon for example (not that I regard Bonaparte as more highly gifted or instructed than John Bull, let alone myself 🙂 ). ‘The many’ gradually create a common law that both reflects and sustains their common culture.

    Snorri, although there are books by Hume in my house, there is plenty by him I have not read – and by Hayek and Mill and many another. As a Robert Heinlein character complained, “They can write the stuff faster than I can read it” – especially as they’ve had centuries to do so. Broadly I think I agree with you on your point in this thread, although mostly I do not agree with Hume. You certainly list some aspects of Hume that I would need a refresher course on at least. (BTW even Samizdata commenters can sometimes write the stuff faster than Niall-has-day-job-Kilmartin can read it at times of work deadline. 🙂 If anyone ever wrote a comment they felt merited a reply it never got, please blame the day job.)

    +1 to Tim’s OP quote. One effect of juries is to push the law to recognise them. For example, Fox’s libel act (late 1700s) changed the law so judges could only rule on whether something ‘was capable of a libellious interpretation’, leaving it to the jury to decide whether, if it was ruled capabale, it was actually libellious. The aim was to prevent judges imposing an artificial concept of libel on free speech, but it was assisted by awareness that, as juries might rebel anyway, it was better to recognise the issue than deny it. (The mere double-check of course in itself helped free speech.)

  • Snorri Godhi

    Paul: i don’t give a bugger whether you stand by what you wrote or not. What i do care about is that you have implicitly admitted that you read nothing of what Hume wrote, on any subject. Why should i read your comments then? (I didn’t.)

    Also, you seem to know nothing of what Thomas Aquinas, Samuel Clarke, or Kant wrote about freedom of the “will”. (I prefer liberum arbitrium, or freedom of choice; which is not quite the same thing as freedom of the will.) Or if you do, you do not seem to think it worth discussing.

  • Paul Marks

    On Snorri’s suggestion I have reread David Hume’s “idea of a prefect commonwealth” which I have not read for many years.

    I was right in thinking it contained no Bill of Rights for ordinary people – but I had forgotten the things that it DOES contain.

    For example, destroying the historic counties and parishes of this land and establishing new ones to get a number of a 100 (or some such).

    There is an interest in mathematical neatness in the document that seems far more like the French Revolution than the American – for example American States do NOT have the same population as each other. Although I doubt the essay was meant seriously – it is hard to tell. Anyway Prime Minister Edward Heath might have liked it – with his new councils, and other modernism. Although I suspect that Prime Minister Heath (with his decimal money and so on) was inspired (directly or indirectly) by Sr William Petty – not David Hume.

    In Hume’s time some ordinary men had the vote and some did not – it depended where you lived (qualifications for voting varied from place to place). Mr Hume makes the system consistent by denying ordinary people the vote everywhere – but then he also gets rid of the monarchy and the House of Lords and…

    Well enough of this – I will not be getting the other essay out. As Sir John Holt pointed out (and Sir Edward Coke pointed out a century before – the case of Dr Bonham 1610) tyranny by Parliament is just as bad as tyranny by a King. Fundamental liberties must be protected from both – hopefully Mr Hume at least pretended to agree.

    As for the refutation of Thomas Hobbes – I am aware that Samuel Clarke undertook this task, but I think that Ralph Cudworth did a better job.

    Thomas Hobbes uses much blunter language than David Hume does – it is clear that Mr Hobbes was talking about flesh robots, NOT human beings.

    Whether one is dealing with general philosophy or political philosophy the works of Thomas Hobbes are undermined by the fact that he is clearly not dealing with PEOPLE.

    The objects (rather than subjects – subject-object distinction) that Mr Hobbes describes are not human beings, therefore it is not a shock that he supports tyranny (“tyranny is but a name of sovereignty”).

    In the blunt language he uses Mr Hobbes is closer to Jeremy Bentham than to David Hume.

    Mr Hume tended to use polite language. Although I hold it to be a sort of smoke screen for what is really much the same position as Mr Hobbes and Mr Bentham.

  • Snorri Godhi

    Niall:

    Broadly I think I agree with you on your point in this thread, although mostly I do not agree with Hume.

    Both clauses leave me confused.

    In the first clause, i am confused as to which point you agree with, since i did not make any, i just asked questions.

    In the 2nd clause, it would be good if you were more specific as to your disagreements with Hume. Do they relate to his epistemology, meta-ethics, theory of causality, theory of human choice, or politics?

    FYI the most important Humean ideas for me are ideas which i ORIGINALLY learned at 2nd hand, if not more remotely. Specifically:
    * Hume’s Fork (anticipated by Locke, i believe; and developed by Kant and Frege);
    * the problem of induction (although Hume did not use the word “induction” and did not seem to realize that there is a problem);
    * the is/ought dichotomy.

    Paul Marks thinks that Hume’s theory of “freedom of the will” (another term that Hume did not use) is a crucial factor in the decline of Western civilization. I, on the contrary, think that the voluntarism of Thomas Reid and Paul Marks is a real threat. But i no longer think that Hume is the remedy: i think that possibly Thomas Aquinas, and certainly Newell & Simon, are the remedy.

    I did get around to reading something by Hume, eventually, but far from all what he wrote. I mentioned those 2 essays because that is where he most clearly shows his constitutionalist credentials. (IIRC, and of course i don’t know about essays which i have not read.)

    Incidentally, Darwin is another major intellectual influence on me which i have never got around to reading.

  • Paul Marks

    I changed my mind. I have now reread On The Independence of Parliament – it is very short so it did not take up much time.

    There is nothing really offensive in the short essay – it accepts there is a problem with the great power of the House of Commons (GOOD! BRAVO!), and its reference to corruption and dependence as the only checks upon the House of Commons is “cheeky”, but he could have made a case for that (after all the essay was really written in the time of Sir Robert Walpole).

    There is no discussion of what the fundamental liberties are in the essay or how they are to be defended. But then I did not expect that.

    By the way Snorri – you say you do not read my comments, this is proved by the way you misquote me.

    I have never said that David Hume has a philosophy of “Freedom of the Will” – a term I dislike.

    I have said that an implication of his philosophy is that human beings do not exist – that humans are not beings. And that implication is there. David Hume even implies that a thought does not mean a thinker (the “I”) – clearly a false position as a moment’s introspection shows.

    The standard position in the Western (and other) tradition is one of moral responsibility – the fact that moral agents (human beings) can choose, sometimes, do other than we do. Otherwise there is no moral justification for such things as the criminal law. If the murderer could not, by moral agency, have made the decision NOT to kill the victim then they are NOT guilty of murder (there is no “guilty mind”). The killer may be insane or their body may have been under the control of some external force – not a murderer in the sense the Common Law understands the term.

    Nor is this a matter of “just” Christian theology – as it was clear in Roman (and other) law, long before Christianity was adopted. As I have already said – the problem with Mr Hume is not his atheism, but rather his denial of the existence of human beings (moral agents – the “I”), of the soul in even the non religious Aristotelian sense.

    Obviously the fundamental rights of non beings do not matter – because non beings do not have rights.

    As for Thomas Reid – he just defended the traditional view of what human is, a view that such things as Magna Carta depend upon.

    Whether Mr Reid defended the traditional view well or badly is an open question (perhaps the traditional view could have been defended better – perhaps Mr Reid did a bad job, I think he did quite well but I could be MISTAKEN), but whether the traditional view is correct or not is not an open question – not if (IF) we are on the side of Constitutional Liberty it is not an open question.

    If the traditional view (that humans are human beings) is NOT correct, then it is rather pointless to discuss juries or any other Constitutional safeguard.

    There is little point is discussing liberty if liberty is impossible. And there is little point in safeguarding the rights of human beings, if they are no human beings.

    Lastly I fully accept that things are much clearer with such writers as Mr Hobbes or Mr Bentham (they do not hide the evil of their position) – with Mr Hume there is a covering of politeness, which is nice (yes indeed) but rather obscures the essential matters.

  • Snorri Godhi (May 2, 2020 at 1:58 pm), to answer your question:

    One must remember that F.A. Hayek (drinking from the poisoned well of David Hume) was WRONG – liberty on this island was not some sort of “evolved” accident, the “product of human action, but not human design” (Paul Marks, May 1, 2020 at 1:28 pm)

    I generally agree with Hayek. Insofar as Paul is right that Hayek was “drinking from the poisoned well of David Hume” (I do not recall that from Hayek specifically myself, but could easily have missed, misremembered or never read the specific reference), I would therefore be agreeing with Hume on that point, although no great fan in general.

    I read your comment to imply that you too were generally agreeing with Hume and (implicitly) Hayek. As you say, you only asked questions, so I may have read an implication that was not there.

  • Nullius in Verba

    “I have said that an implication of his philosophy is that human beings do not exist – that humans are not beings. And that implication is there. David Hume even implies that a thought does not mean a thinker (the “I”) – clearly a false position as a moment’s introspection shows.”

    Umm. Again, citation needed.

    I’m aware that Hume taking the Empiricist position has argued against Descartes Rationalist ‘cogito ergo sum’ argument for knowledge prior to any empirical evidence – but this neither says nor is meant to imply that the self therefore does not exist. Hume divides knowledge into claims about relations, the logical implication from axioms to theorems as in mathematics, and ‘matters of fact’, which are contingent on empirical observation. Euclid can prove that lines and points satisfying his axioms imply that the angles of a triangle add up to 180 degrees, and this is an eternal truth, but one cannot prove that any such lines, points and triangles exist or that they satisfy his axioms except by empirical observation. (Which is subject to the problem of induction.)

    Thus, the cogito argument is separated into two components: that a thought implies a thinker might be an eternal truth about relations between propositions, in the same sort of way that might assert that you can’t see an elephant if elephants don’t exist, or a reflection if reflections don’t exist. But this achieves nothing without the empirical, matter-of-fact observation/experience of thinking the thought. In other words, that the cogito argument is as much founded on empiricism as the existence of elephants and rainbows.

    Further, the concept of ’cause’ and the logical connectives by which we prove claims about relations are themselves based on empirical observation of how the world around us behaves. That something either exists or does not exist, that the cat in the box is either alive or dead, it cannot be both at the same time, is a claim of logic that has been assumed incontrovertible since the dawn of thinking. But it is as much a product of induction from empirical observation as anything else. If our reasoning processes themselves are suspect, how can we use reason to ‘prove’ anything?

    None of this says we’re definitely wrong about our common conclusions, only that we must remain slightly uncertain. To assert their falsehood would be even more problematic than to assert their truth.

    I freely confess I’ve not read everything Hume wrote, but I’m not aware of him asserting anywhere that human beings don’t exist. So, do you have a more specific reference?

  • Snorri Godhi

    Paul: your latest reply is more reasonable, but i cannot possibly address all of it at once. Today, i am just going to comment on Thomas Reid.

    But first, a clarification. You wrote:

    By the way Snorri – you say you do not read my comments, this is proved by the way you misquote me.

    No: I said that i did not read what were your latest comments at the time (comments @12:06 and @1:01pm today). I do read your comments, though sometimes with a sneer 🙂

    I have never said that David Hume has a philosophy of “Freedom of the Will” – a term I dislike.

    Strictly speaking, I did not quote you on that, but i do apologize for implying it.

  • NickM

    Euclid can prove that lines and points satisfying his axioms imply that the angles of a triangle add up to 180 degrees, and this is an eternal truth, but one cannot prove that any such lines, points and triangles exist or that they satisfy his axioms except by empirical observation. (Which is subject to the problem of induction.)

    NiV, sorry, I really don’t understand where you are going with that. At all. Euclidean triangles are an ideal, a concept. As such they exist as a sort of mental thing which is of course true in a mathematical sense – in the same way 1+1=2. The only way I can see how empiricism or induction enters the game is “real world”* triangles which are of course approximations to the ideal triangle. And that is ignoring General Relativity. Now I don’t want to put cast nasturiums but I get the impression you seem to be kinda conflating pure maths and physics? My general feeling is that is a very intellectually dangerous path to tread.

    Anyway, this entire discussion is tending very heavily in the direction of The Bruces

    *By which I use the Dr Johnson test – can you kick it?

  • Snorri Godhi

    WRT Thomas Reid, allow me to fisk Chapter 1 of his Essay IV: Of the Liberty of Moral Agents, in Essays on the Active Powers of Man — never mind the sexist title 🙂

    By the liberty of a moral agent, I understand, a power over the determinations of his own will.

    If, in any action, he had power to will what he did, or not to will it, in that action he is free.

    This is already dodgy. If an agent has the power to will or not to will an action, INDEPENDENTLY of facts and values, then the “agent” is no agent at all by my standards: it is merely a random number generator.

    I skip the rest of the 2nd paragraph, and the 3rd paragraph. Moving on to 4th and 5th paragraphs:

    The liberty of a moral agent implies, not only a conception of what he wills, but some degree of practical judgment or reason.

    For, if he has not the judgment to discern one determination to be preferable to another, either in itself, or for some purpose which he intends, what can be the use of a power to determine? His determinations must be made perfectly in the dark, without reason, motive or end. They can neither be right nor wrong, wise nor foolish. Whatever the consequences may be, they cannot be imputed to the agent, who had not the capacity of foreseeing them, or of perceiving any reason for acting otherwise than he did.

    This is where Reid displays a flash of genius.

    His claim is that an agent must be able to estimate one choice to be preferable to another. Although he did not say so explicitly, this implies both some knowledge of the state of the world, and a value system that allows the agent to assign a value to each possible choice.

    Once you have those 2 faculties: ability to learn the state of the environment, and a value system — you have what Samuel Clarke, Anthony Collins, et al, called moral necessity. The moral choice is — in most cases — uniquely determined by your knowledge of the world, together with your value system.

    —-
    It is past this point that Reid becomes pernicious.

    To be sure, human beings do not always act according to moral necessity. Any deviation from moral necessity, however, is a moral failing. But not for Reid: for Reid, an agent who always follows moral necessity is not an agent at all, but a machine. (Reid gives the concrete example of Cato.)

    I am sorry, but i cannot consider Reid’s thesis as anything other than moral idiocy.

    But i’d be interested to know what i should read about Reid’s specifically political views: I believe that one can be a moral idiot in ethics, and still write something of interest about politics.

  • Nullius in Verba

    “NiV, sorry, I really don’t understand where you are going with that. At all. Euclidean triangles are an ideal, a concept. As such they exist as a sort of mental thing which is of course true in a mathematical sense – in the same way 1+1=2. The only way I can see how empiricism or induction enters the game is “real world”* triangles which are of course approximations to the ideal triangle.”

    Yes. Exactly.

    “Hume divides knowledge into claims about relations, the logical implication from axioms to theorems as in mathematics, and ‘matters of fact’, which are contingent on empirical observation.”

    Claims about relations are relative, things of the form ‘if X then Y’, but only empiricism can provide the ‘X’.

    And as you say (with General Relativity), even the axioms Euclid considered to be ‘obvious’, and which generations considered to be the epitome of absolute unarguable truth, can be contradicted by empirical observation.

  • Snorri Godhi

    Niall:

    I read your comment to imply that you too were generally agreeing with Hume and (implicitly) Hayek.

    Well, yes, i do generally agree with Hume and Hayek. I would add Whewell, Darwin, and Popper as other thinkers who emphasized learning by trial+error. (Although Whewell breezily dismissed Hume.) And also Newell+Simon, once again.

    I could add some qualifications to the above, but i won’t. Not today.

  • Nullius in Verba

    NickM – Try Hume’s original words. He may explain it better than I can.

    All the objects of human reason or enquiry may naturally be divided into two kinds, to wit, Relations of Ideas, and Matters of Fact. Of the first kind are the sciences of Geometry, Algebra, and Arithmetic; and in short, every affirmation which is either intuitively or demonstratively certain. That the square of the hypotenuse is equal to the square of the two sides, is a proposition which expresses a relation between these figures. That three times five is equal to the half of thirty, expresses a relation between these numbers. Propositions of this kind are discoverable by the mere operation of thought, without dependence on what is anywhere existent in the universe. Though there never were a circle or triangle in nature, the truths demonstrated by Euclid would for ever retain their certainty and evidence.

    Matters of fact, which are the second objects of human reason, are not ascertained in the same manner; nor is our evidence of their truth, however great, of a like nature with the foregoing. The contrary of every matter of fact is still possible; because it can never imply a contradiction, and is conceived by the mind with the same facility and distinctness, as if ever so conformable to reality. That the sun will not rise to-morrow is no less intelligible a proposition, and implies no more contradiction than the affirmation, that it will rise. We should in vain, therefore, attempt to demonstrate its falsehood. Were it demonstratively false, it would imply a contradiction, and could never be distinctly conceived by the mind. …

    All reasonings concerning matter of fact seem to be founded on the relation of Cause and Effect. By means of that relation alone we can go beyond the evidence of our memory and senses. …

  • Snorri Godhi

    WRT the Philosopher’s Song (link by NickM):

    Immanuel Kant
    was a real pissant
    who was very rarely stable

    Heidegger, Heidegger
    was a boozy beggar
    who could think you under the table

    I am inclined to think that it was Kant who could think you under the table.

    I am even more strongly inclined to think that Heidegger was very rarely stable.

  • NickM

    NiV,
    I suspect me and you are getting dangerously close to arguing about angels dancing on pins. I cannot disagree with the Hume quote… except for the rather loaded use of the word “fact”. I would argue that mathematics (and logic) deals as much in facts as the empirical sciences. They are different kinds of “facts” – up to a point – there is a kinda cross-over*.

    Now, I appreciate Euclid did not say the final word on geometry and I appreciate a heck of a lot of people thought he did for a Hell of a long time… But… within the the self-consistent logical frame-work established by Euclid et. al. his stuff is true. Kind of. There is of course the issue of the fifth postulate. But that all depends on how you look at things. For sure Euciden geometry is not the only self-consistent geometry. But it is self-consistent. It is true mathematically and it is near as damnit for most purposes (see*) to still be useful.

    It is nearly 10pm here. So, I don’t think I can arse myself to go further because that is taking me close to yanking out the axiom of choice. And given the mental health of the likes of Georg Cantor et. al.

    But, as ever, I have enjoyed our discussion. Have I ever brought-up the advance of the perihelion of Mercury with you? That does seem relevant here. Oddly enough.

    I am trying (and getting nowhere) in setting-up my own blog. It’s going to be very theoretical stuff. If I can beat WordPress into submission. I am very aware that I have strayed a way off trial by jury.

    *I call that engineering. A couple of years ago I had a shed built in my back garden. Still there, still a good shed. Was maths used in it’s construction? Obviously. But within the context – this is is a shed – not CERN I doubt the lasses who built it ever considered spacetime curvature. Indeed I seem to recall when one of the Voyagers rendevoused with Jupiter it was a mere ten metres out and that was done with Sir Isaac as designated driver.

  • NickM

    Martin Heidegger was a nucking futter. I have a general dislike of German philosophers.

  • Paul Marks

    I will try and lighten the tone as best I can.

    I tried to look up the details of the Benny Hill case – but I failed, so I will have to rely on memory – I apologise if I make any errors.

    Benny Hill was the first victim (that I know of) of “Political Correctness” (Frankfurt School of Marxism) in Britain.

    He had a very successful television comedy show, the most successful on independent television – but it was take off the air (by Thames Television) for what is known as “sexism”.

    But it is not this outrage I am thinking of – it is a criminal accusation.

    Benny Hill was accused of stealing a tie from a ship.

    He clearly took the tie from the shop – and he did not pay for it.

    So in Civil Law he was clearly liable for the cost of the tie – the store could demand that he pay for it.

    But was Benny Hill guilty of THEFT?

    The case hinged on whether Mr Hill INTENDED to take the tie without paying for it.

    It was a black tie and Mr Hill had been going to a funeral – he suddenly realised that he was not wearing a black tie, and so popped into a store (with some friends) to get one.

    Mr Hill claimed that he had been distracted by the funeral and by talking with his friends. This was ACCEPTED. It was accepted that he had not made a CHOICE not to pay for the tie – and so was innocent of theft.

    Theft (like other Common Law crimes) depends on CHOICE.

    If there is CHOICE there is NO CRIME.

    Therefore although Benny Hill had taken the tie out of the store without paying for it – he had NOT committed theft.

    Without choice there is no crime, without choice there is no “morality” (that is why to say Hume had an “ethical theory” does not grasp that he denied the basis of ethics, of morality, which is choice – the ability to do otherwise than we do). Intellect must NOT be “the slave of the passions” – Mr Hume described almost perfectly what intellect must NOT be, but then he said that it must-be-this, must be what (ethically) it must NOT be.

    For example, in a jury trial one may hate the accused and like the person accusing them -but one must rise above emotion and act justly (or one has no business being on a jury). One must not allow one’s intellect to be a slave of one’s passions.

    Turning to intellect itself -the very existence of the intellect (what it is) depends on the existence of agency (the ability to choose) – the existence of agency, of the agent. That IS the intellect – the mind, the soul (even in a non religious sense).

    If there is no agency (no ability to do other than we do) then there is no intellect – there is no mind.

    To deny agency, is to deny the “I” and that is to deny intellect – to deny the existence of the mind.

    It is not “casting light upon the mind” as J.S. Mill would have it – it is denying the existence of the mind – casting darkness upon it.

    It is not “explaining the mind” – it is explaining AWAY the mind.

  • Paul Marks

    On Contractualism – I do not think that David Hume can correctly be called a contractualist – in spite of the essays that Snorri kindly suggested

    Contractualism can have two meanings – in law it depends on individual choice.

    A person (a mind – an example of agency, an agent) agrees to something – either on their own behalf or on behalf of some organisation (body corporate – such as a university, a church, or a commercial company) that they have the right to make an agreement for.

    One can not make a contract with an object (a non agent) only with a subject (an agent). It is quite true that one can make a contact (an agreement) with a body corporate – but only via a representative (an agent – a someone, not a something).

    Try the experiment yourself – try, for example, making a contract with a church – NOT with a representative of the church (a reasoning mind – an example of agency) but with the physical building.

    One can not make a contract with an object (such as a physical church) – not without an actual being (a choosing “I”) who chooses whether or NOT to make the contract. The distinction between an object and a subject (a choosing “I”) is vital in this matter.

    By denying the existence of real choice, indeed of the choosing “I” itself, Mr Hume undermines the foundations of the law of contact. Just as Mr Hobbes did before him – it is not for nothing that Mr Hobbes identified his great ENEMY as “a student of the Common Law of England” for the Common Law depends on basic assumptions of philosophy which are totally opposed to the position of Mr Hobbes – and Mr Hume.

    HOWEVER, there is also a POLITICAL sense of the word “contractualist”.

    I think was Gough (Ocford, Oriel, a little book just after World War II) that identified one of the key moves of John Locke.

    Mr Locke (without warning or argument) goes from INDIVIDUAL consent (Common Law contract) to MAJORITY consent.

    In short even if 49 out of a hundred people say “No” Mr Locke holds they have said “Yes” because 51 other people have said “Yes” – even though the 49 have in no way given their power to make a contract to these 51 other people.

    This bizarre view of contract is the basis of POLITICAL “contractualism”.

    All that can be said for Mr Locke is two things – firstly that he is not the first person to play this trick (for trick it is) – for example the Scottish thinker Buchanan had done the same thing a century before.

    The other thing that can be said in favour of the position of Mr Locke is practically.

    We know from bitter experience that individual consent does not work in politics. For example the “Commonwealth of Poland”.

    The Commonwealth of Poland was a wealthy and culturally advanced land – and its warriors were greatly to be feared (the Winged Hussars and all that).

    However, its political system had a fatal flaw – a single noble (an individual) could excise a veto on many vital matters – this left Poland open to its enemies, as its enemies could normally find a noble (an individual) who would veto vitally needed action (if bribed or threatened).

    So someone like John Locke could say “I know this 51 out of a 100 thing is not a real contact – but it is the closest I can get to it, in a system that will actually WORK”.

    But none of the above helps David Hume – because the 51 out of a 100 people of John Locke making the choice (even with the other 49 chanting “we never agreed to let you speak for us – THIS IS NO CONTRACT”) are still making a real choice (i.e. they could choose to do otherwise) – the very capacity that Mr Hume denies. If humans are not beings (if they are without agency – without a soul in the Aristotelian sense) then THEY CAN NOT MAKE CONTRACTS – not legally, and not politically either.

    Again “explaining” choice is “explaining AWAY” choice – it is DENYING it, under the mask of “explaining” it.

    It is not explaining the mind – it is denying the mind.

  • Nullius in Verba

    “If there is no agency (no ability to do other than we do) then there is no intellect – there is no mind.”

    Possibly, if you are an incompatibilist. Not everyone is.

    You do know about compatibilism, don’t you?

    “It is not “casting light upon the mind” as J.S. Mill would have it”

    Is that supposed to be a quote? Where from?

    “By denying the existence of real choice, indeed of the choosing “I” itself, Mr Hume undermines the foundations of the law of contact.”

    Still waiting for the citation…

    “Try the experiment yourself – try, for example, making a contract with a church”

    Can you enter into ‘trade’ with a vending machine? Can you make a binding legal contract with a computer? Click on the tick box if you accept the terms…

  • Indeed I seem to recall when one of the Voyagers rendevoused with Jupiter it was a mere ten metres out and that was done with Sir Isaac as designated driver. (NickM, May 2, 2020 at 9:00 pm)

    The GPS satellites that your phone uses require Albert to assist Sir Isaac to attain an accuracy of feet. Sir Isaac alone only offers metres. I guess that means that an error of only ten metres in reaching (a designated orbital point, I assume, above) Jupiter, is not immediately incredible, but I suspect the information is known because NASA took great care to work it out with the Albertian correction well ahead of time.

  • @Niall – Not quite.

    The GPS system doesn’t actually use Einstein’s field equations. In fact, this paper by the U.S. Naval Observatory tells us that, while incorporating Einstein’s equations into the system may slightly improve accuracy, the system itself doesn’t rely on them at all. To quote the opening line of the paper, “The Operational Control System (OCS) of the Global Positioning System (GPS) does not include the rigorous transformations between coordinate systems that Einstein’s general theory of relativity would seem to require.

    https://www.mic.com/articles/19755/the-speed-of-gravity-why-einstein-was-wrong-and-newton-was-right

  • Nullius in Verba

    “Now, I appreciate Euclid did not say the final word on geometry and I appreciate a heck of a lot of people thought he did for a Hell of a long time… But… within the the self-consistent logical frame-work established by Euclid et. al. his stuff is true. Kind of. There is of course the issue of the fifth postulate.”

    Not just the fifth postulate. Once people realised the issue was open to question, it was soon found that you can actually reverse *any* of the axioms and still get a self-consistent geometry. If you reverse an axiom and get a contradiction, then the axiom isn’t an axiom it’s a theorem, and you’ve just proved it using ‘Proof by Contradiction’. (The Axiom of Choice likewise.)

    As a result, there were found to be a very large number of alternative versions of geometry. A lot are uninteresting, but there are some gems in there that are just as beautiful. I used to play with finite geometries a long time ago – those are versions of Euclidean geometry in which there are only a finite number of points and lines. Others worthy of note are projective geometry, inversive geometry, and conformal geometry, in which straight lines are circles, flat planes are spheres, and infinity is included as part of space. They turn out to be hugely important in physics.

    “But, as ever, I have enjoyed our discussion. Have I ever brought-up the advance of the perihelion of Mercury with you? That does seem relevant here. Oddly enough.”

    Me too. And yes, you have.

    “the-speed-of-gravity-why-einstein-was-wrong-and-newton-was-right”

    Oh, yes! I remember Tom Van Flandern and the ‘Speed of Gravity’ incident! I actually had a brief email exchange with him at the time about it. I’m reasonably convinced it was all a massive wind-up of the physics world, and he knew perfectly well what the truth of the matter was. It certainly got everyone talking about it. Classic.

    It was actually Laplace who first did the calculation Van Flandern used. I’m pretty sure Van Flandern got it from Laplace.

    It’s true that the GPS system only uses SR+GR to correct the clocks, but it still relies on the correction.

  • Snorri Godhi

    Paul: when you misread “constitutionalist” as “contractualist”, you are in no position to tell me what Hume meant: if you misunderstand me, then i must conclude that you misunderstand Hume, too. That conclusion receives support from your refusal to provide chapter and verse, in spite of Nullius’ repeated requests.

    Anyway, haven’t you got the message?
    I am no longer interested in discussing Hume’s theory of agency.
    If you want to discuss Reid’s theory, i am interested.
    If you want to discuss Thomas Aquinas’ theory, i am interested. My knowledge of it is superficial, and at 2nd hand — but that is one of the reasons why i am interested.
    But I am not interested in discussing Hume’s theory of human choice any further. Not with you, at least.

    BTW, in spite of your fear-mongering, i believe that we need not worry too much about a philosopher’s theory of human choice: it tells us next to nothing about his (or, less often, her) moral and political beliefs.

  • Snorri Godhi

    WRT “Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.”
    Let’s have a look at what Hume meant by “the passions”.

    That is easily done: just look at the table of contents of Book II of the Treatise of Human Nature. I omit a few section headings:

    Book II: Of The Passions

    PART I.: of pride and humility.
    […]
    SECTION VII.: Of vice and virtue.
    SECTION VIII.: Of beauty and deformity.
    SECTION IX.: Of external advantages and disadvantages.
    SECTION X.: Of property and riches.
    SECTION XI.: Of the love of fame.
    […]

    PART II.: of love and hatred.
    […]
    SECTION IV.: Of the love of relations.
    SECTION V.: Of our esteem for the rich and powerful.
    SECTION VI.: Of benevolence and anger.
    SECTION VII.: Of compassion.
    SECTION VIII.: Of malice and envy.
    SECTION IX.: Of the mixture of benevolence and anger with compassion and malice.
    SECTION X.: Of respect and contempt.
    SECTION XI.: Of the amorous passion, or love betwixt the sexes.
    […]

    PART III.: of the will and direct passions.
    […]
    SECTION III.: Of the influencing motives of the will.
    SECTION IV.: Of the causes of the violent passions.
    SECTION V.: Of the effects of custom.
    SECTION VI.: Of the influence of the imagination on the passions.
    […]
    SECTION X.: Of curiosity, or the love of truth.

    You can look at the entire table of contents, if you wish.
    The point is, Hume included the ‘moral sentiments’ into the rubric of ‘passions’.

    Paul, are you outraged at the idea of reason being the slave of the moral sentiments?

  • Mr Ed

    Snorri

    if you misunderstand me, then i must conclude that you misunderstand Hume, too.

    That ‘must‘ is one heck of a leap, Neil Armstrong would have been in awe of it.

    In terms of contracts and vending machines, this has been judicially considered in the law of England and Wales:
    Lord Denning MR said:

    The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved. He is committed beyond recall. He was committed at the very moment when he put his money into the machine. The contract was concluded at that time. It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made…

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