Sunday, May 04, 2008

The Discovery of Law

"Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of laws. The latest, most modern, and nearest perfect system that statesmanship has devised is representative government."

-Calvin Coolidge

(How comes people don't talk this way anymore?)

22 comments:

Jewish Atheist said...

Because strongly stated assertions don't mean that they're true? :-)

Our country is based on the idea that men have natural, inalienable rights, which, like Coolidge's speech, are a very convenient fiction. Most intellectuals don't think like that any more.

Rabban Gamliel said...

There's nothing ideal about governments' laws. You simply see what you want. Jewish Atheist I have to admit if I were an atheist I would have to agree with you. Do you have any links to these intellectuals who you refer to?

Orthoprax said...

JA,

"Our country is based on the idea that men have natural, inalienable rights, which, like Coolidge's speech, are a very convenient fiction. Most intellectuals don't think like that any more."

Then I guess that explains why there are so few (so-called) intellectuals in government. I wouldn't vote for someone who thought human rights were negotiable.

If you believe in morality then there is a right way of governing and the purpose of the law is to best approximate it.

resh lakish said...

The idea that laws are not made, but exist on some Platonic plane and are merely "discovered", was historically a key part of the ideology of the common law system. Although it's been a couple hundred years since everyone admitted that legislatures do actually make laws, to this day, many old-fashioned judges and legal academics bristle at the concept of "judge-made law", even when it is manifestly the case that judges are, in fact, making law.

Btw, Silent Cal is awesome. And that was a very long speech by his standards.

resh lakish said...

Our country is based on the idea that men have natural, inalienable rights, which, like Coolidge's speech, are a very convenient fiction. Most intellectuals don't think like that any more.
Of course, until someone tries to deny those fictional rights to the intellectuals. Then the fur flies.

Rabban Gamliel said...

The purpose of law is not to serve as a Platonic conduit on Earth. the purpose of the law is whatever we feel it should be. I think it should be for oprder in the socirty and benefits for the general welfare but it's not some grand design. We have a need I feel for government so we have to see what we want it for. Nothing Platonic is happening.

CyberKitten said...

How comes people don't talk this way anymore?

Erm... Because its nonsensical?

Orthoprax said...

"Erm... Because its nonsensical?"

First that's not true. If you don't agree with the statement then that's your prerogative but it makes sense.

Secondly, when has 'sense' ever been the standard of what comes out of the mouths of public figures and politicians?

Orthoprax said...

RL,

"many old-fashioned judges and legal academics bristle at the concept of "judge-made law", even when it is manifestly the case that judges are, in fact, making law."

Of course. It is obviously the case that people are writing the law and deciding on policy - but what justifies them and what makes for _good law_ are (as Coolidge says) the ideals of righteousness which they approximate.

The laws are what guide a society to success or ruin and the proper recipe for success is only something that can be discovered.

resh lakish said...

Of course. It is obviously the case that people are writing the law and deciding on policy - but what justifies them and what makes for _good law_ are (as Coolidge says) the ideals of righteousness which they approximate.

Except that this type of thinking has been deeply unfashionable over the last century or so, as legal positivism has dominated legal philosophy.

Orthoprax said...

Unless the issue is a matter of the definition of "law" then legal positivism is just moral relativity where the Nazi legal system is as valid as the American one.

I do not believe this view is as popular as you think.

However, if the issue is just a definition of a "law" being valid, then I'd agree. Valid laws can be bad laws. That procedure is followed has no bearing on the ethics of it.

resh lakish said...

It’s more the latter than the former. Proponents of a natural law approach argue that for rules to genuinely warrant the appellation “law,” they must correspond to ethics. Positivism merely denies this, and posits that law is law. Positivists are not necessarily moral relativists -- many positivists even argue that there are cases in which unjust laws should be ignored.

But getting back to Silent Cal, although I don’t know how developed his legal philosophy was, the speech you excerpted seems to show an affinity for the natural law position.

Orthoprax said...

I don't know particularly his views on the matter, but as far as I can tell, it's really just a semantic distinction without a difference.

If he had an explicitly positivist speech then he'd say that men discover laws that further the cause of righteousness. Men discover good laws.

Rabban Gamliel said...

Orthoprax men make law. They don't discover it. We figure what we want out of a government and go for it. Further what works for one country doesn't work for all. A Frenchman would say our legal philosophy is too amoral.

Orthoprax said...

And what makes you think ruling ourselves by our collective wants is not the best way to approximate ideal lawfulness?

That groups disagree has little bearing on the validity of the approach.

Rabban Gamliel said...

Orthoprax if collective wants universally would approximate the ideal the world would be a better place but it doesn't. If man is an island it won't. If man is a part of a collective it won't. After the rerise of hate in Europe how can you have such in faith in man? I don't. We Jews have been betrayed again. I guess we (me included) couldn't learn from history and I'm yet only a generation from the horrors of the Holocaust. Other groups hatreds are doing nicely and/or refestering.

Orthoprax said...

Ergo - "[Good] laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness."

Orthoprax said...

If you know a better approach to approximating the ideal, I'd like to hear it.

Rabban Gamliel said...

I'm not willing to speak of human progress in the same way anymore. I don't want to be disapointed anymore.

alex said...

"They must rest on the eternal foundation of righteousness."

Who says that the foundation of righteousness is eternal?

Rabban Gamliel said...

Especially since the Universe isn't.

alex said...

I believe some mathematicians are asking your question. Allow me to paste an article.

======

Where do mathematical objects live?

Think too hard about it, and mathematics starts to seem like a mighty queer business. For example, are new mathematical truths discovered or invented? Seems like a simple enough question, but for millennia, it has provided fodder for arguments among mathematicians and philosophers.

Those who espouse discovery note that mathematical statements are true or false regardless of personal beliefs, suggesting that they have some external reality. But this leads to some odd notions. Where, exactly, do these mathematical truths exist? Can a mathematical truth really exist before anyone has ever imagined it?

On the other hand, if math is invented, then why can’t a mathematician legitimately invent that 2 + 2 = 5?

Many mathematicians simply set nettlesome questions like these aside and get back to the more pleasant business of proving theorems. But still, the questions niggle and nag, and every so often, they rise to attention. Several mathematicians will ponder the question of whether math is invented or discovered in the June European Mathematical Society Newsletter.

Plato is the standard-bearer for the believers in discovery. The Platonic notion is that mathematics is the imperturbable structure that underlies the very architecture of the universe. By following the internal logic of mathematics, a mathematician discovers timeless truths independent of human observation and free of the transient nature of physical reality.

“The abstract realm in which a mathematician works is by dint of prolonged intimacy more concrete to him than the chair he happens to sit on,” says Ulf Persson of Chalmers University of Technology in Sweden, a self-described Platonist.

The Platonic perspective fits well with an aspect of the experience of doing mathematics, says Barry Mazur, a mathematician at Harvard University, though he doesn’t go so far as to describe himself as a Platonist. The sensation of working on a theorem, he says, can be like being “a hunter and gatherer of mathematical concepts.”

But where are those hunting grounds? If the mathematical ideas are out there, waiting to be found, then somehow a purely abstract notion has to have existence even when no human being has ever conceived of it. Because of this, Mazur describes the Platonic view as “a full-fledged theistic position.” It doesn’t require a God in any traditional sense, but it does require “structures of pure idea and pure being,” he says. Defending such a position requires “abandoning the arsenal of rationality and relying on the resources of the prophets.”

Indeed, Brian Davies, a mathematician at King's College London, writes that Platonism “has more in common with mystical religions than with modern science.” And modern science, he believes, provides evidence to show that the Platonic view is just plain wrong. He titled his article “Let Platonism Die.”

If mathematics is the perception of this realm of pure ideas, then doing mathematics requires our brains to somehow reach beyond the physical world. Davies argues that brain-imaging studies are making this belief steadily less plausible. He points out that our brains integrate many different aspects of visual perception with memory and preconceptions to create a single image — not always correctly, as optical illusions make clear. He also says that brain-imaging studies are beginning to show the biological basis of our numeric sense.

But Reuben Hersh of the University of New Mexico isn’t convinced that studies like these logically destroy the Platonic notion of an intuitive faculty to perceive mathematics. Nevertheless, he rejects the Platonic view, arguing instead that mathematics is a product of human culture, not fundamentally different from other human creations like music or law or money.

The challenge, he admits, is to explain why it is that mathematical statements can be definitively true or false, not subject to taste or whim. With simple statements like “2 + 2 = 4,” this is because of the connection between mathematics and physics, he says. Such a statement describes, for example, the way that coins or buttons behave. For more abstract statements that are further removed from the physical world, he points to the structure of our brains and our penchant for logic.

But Mazur finds that explanation unsatisfying. “We should keep an eye on the stealth word ‘our,’” he writes. “Is the we meant to be each and every one of us, given our separate and perhaps differing and often faulty faculties?” In this case, mathematics itself has to vary as individuals do.

On the other hand, if “we” means a kind of abstraction of our individual capabilities — the common thing that binds us together without actually being any of us — he says that we are verging back toward the Platonic notion of a realm of abstract ideas.

But the notion of invention also captures something true about the experience of doing mathematics, in his view. “At times,” he says, “I seem to be engaged in an analysis of my thought processes or other people’s thought processes while doing mathematics.” All aspects of these experiences, he argues, need to be included in these discussions.

“One thing is — I believe — incontestable,” he writes. “If you engage in mathematics long enough, you bump into The Question, and it won’t just go away. If we wish to pay homage to the passionate felt experience that makes it so wonderful to think mathematics, we had better pay attention to it.”

References:

Hersh, R. 2008. On Platonism. European Mathematical Society Newsletter (June). http://www.ems-ph.org/journals/journal.php?jrn=news.
Mazur, B. 2008. Mathematical Platonism and its Opposites. European Mathematical Society Newsletter (June). http://www.ems-ph.org/journals/journal.php?jrn=news.

Persson, U. 2008. On Platonism. European Mathematical Society Newsletter (June). http://www.ems-ph.org/journals/journal.php?jrn=news.

Davies, E.B. 2007. Let Platonism Die. European Mathematical Society Newsletter (June). http://www.ems-ph.org/journals/newsl...2007-06-64.pdf.