Residues of positivism present in this person persistently if painfully push the present person to proclaim that if we are to make sense of common sense we must -- at the extremes -- distinguish between common sense about "hard facts" -- e.g., soil, flowers, table tops, fog [a soft hard fact :-) ] -- and common sense about soft moral questions -- e.g., polygamy, deceit by doctors to alleviate patients' dread & fear.
But does the positivist distinction between values and hard, brute facts get us anywhere? There is, first, the considerable difficulty that in real-world affairs real-world people often do gather evidence when they confront moral and "normative" questions. See P. Tillers, "The Value of Evidence in Law," 39 No. Ire. Leg. Q. 167 (1988).
But there is a second difficulty, and it is perhaps more serious for present purposes.
The general object of my interest at the moment is not the question of the sense or nonsense of common sense about moral and normative issues. I am now investigating how much sense there is in our inferences about questions of fact. So it appears, does it not, that the positivist insistence on the distinction between "facts" and "values" is beside the point?
But wait ... er ... hold on ...
The positivist distinction between facts and values -- though it may not show that common sense about questions of fact is always sensible --, that distinction is perhaps not entirely beside the point.
Various observers have noted -- for decades! -- that questions of "fact" in legal proceedings sometimes and perhaps often have soft rather than hard edges and that -- worse(?) yet -- such "factual" issues often seem to have a moral or (at least) a normative character -- e.g., was the alleged tortfeasor's behavior about some matter "reasonable," did the used-car salesman make the representation in "good faith"?
So perhaps some of the uncertainty of judgments about such questions is attributable to the (alleged) inherent "subjectivity" -- which in this context means "unverifiability" -- of judgments about questions of (moral) value. (A close relative of this particular line of reasoning is that questions about matters such as "good faith" involve an admixture of [i] pure factual inference, deliberation about the existence or nonexistence of possible states of the world and [ii] "ascription" of moral or normative qualities or attributes to possible states of the world.)
But where do these ruminations leave us? They do not, it should be noted, address the possibility that at least some questions in legal proceedings about normative matters are questions about the existence or non-existence of some moral, normative, evaluative, or ascriptive criteria in some pertinent sector of the cosmos (e.g., on Tuller Street in Columbus, Ohio, in 1959) rather than the decision maker's -- e.g., a juror's or trial judge's or mediator's -- moral or normative preferences and sentiments.
And the reasoning above does not yet address the fact -- is it a fact? -- that the common sense -- or, in any event, the ordinary common sense -- of people about questions with hard edges also sometimes or often diverges (but perhaps people without much sound common sense about matters such as diseases, explosives, and diet live, in the long run, shorter or less satisfying lives).
Well, these last two objections are not necessarily fatal to the proposition that common sense about at least some types of questions ("almost always"? "generally"? "under the right introspective or dialogic circumstances"?) makes a great deal of sense. But the above objections and the above discussion do suggest that we need to make many, many distinctions if we are to make headway in our deliberations about the question of the reliability or unreliability of common sense and the question of the possibility of ridding ourselves (in legal proceedings, in any event) of rotten common sense.
Incidentally: Might it ultimately be both necessary and correct to suppose that some good ideas are buried in our heads and that (only) if we think about them well enough and conscientiously enough -- no Thrasymachuses here, if you please! --, that then (and only then) we can discern, disinter them, bring them to light? To wit: are some good ideas "hard-wired" in the human brain or mind?