Friday, April 04, 2003

Judicial Proof, Common Sense, and Common Nonsense

Being a common man and a bit of a populist, I am reluctant to admit it, but admit I must:

Common sense is sometimes nonsense.

See Marilyn MacCrimmon, "What is 'Common' About Common Sense: Cautionary Tales for Travelers Crossing Interdisciplinary Boundaries," 22 Cardozo Law Review 101(2001).

So if inference is a matter of common sense (see the preceding post), what follows?

Specifically: how do we distinguish common sense from common nonsense?

Note bene: It is not really possible to "scientifically validate" (or invalidate) or "empirically verify" (or disprove) all of the many common sense propositions that are deployed in even "simple" inference from "ordinary" evidence about a "common" factual issue. (Proof: just think -- carefully -- about any concrete -- any actual -- problem involving actual evidence and any real-world factual issue.)

But if "science" and empirical tests fail us, how do we -- how can we -- gain an external vantage point on our presuppositions and "common sense"? Is it -- inference, that is --, is it all then just a matter of personal preference -- or "politics" -- or prejudice?

Can "dialogue" save us? Introspection? Vox populi?

Stay tuned.

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