War and Human Rights

I

Nat Hentoff, "Why I Didn't March This Time," Village Voice (March 28, 2003)(online):

I participated in many demonstrations against the Vietnam War, including some civil disobedience.... As I told The New York Sun in its March 14-16 roundup of New Yorkers for and against the war:

"There was the disclosure . . . when the prisons were briefly opened of the gouging of eyes of prisoners and the raping of women in front of their husbands, from whom the torturers wanted to extract information. . . . So if people want to talk about containing [Saddam Hussein] and don't want to go in forcefully and remove him, how do they propose doing something about the horrors he is inflicting on his people who live in such fear of him?"

I did not cite "weapons of mass destruction." Nor do I believe Saddam Hussein is a direct threat to this country, any more than the creators of the mass graves in the Balkans were, or the Taliban. And as has been evident for a long time, I am no admirer of George W. Bush.

The United Nations? Did the inspectors go into the prisons and the torture chambers? Would they have, if given more time? Did they interview the Mukhabarat, Saddam's dreaded secret police?

II

Edward Rothstein, "Looking for Roots of War and Terror" (review of Paul Berman, Terror and Liberalism(W.W. Norton), New York Times (Saturday, April 5, 2003)(online):

[Berman] traces the literary cults of "murder and suicide" and "acts of Satanic transgression" in 19th-century European Romanticism and nihilism. After World War I came death-haunted utopianism: Lenin's Bolsheviks, Stalinists and Spanish, Italian and German Fascists; later there came Maoists, the Khmer Rouge and sundry other ensembles. A totalitarian pattern developed: a lost past or a utopian future is sought, internal enemies are hunted (in many cases, Jews), an absolutist body of law is established and external enemies are fiercely attacked.

Similar patterns developed in the Middle East. The founder of Saddam Hussein's fascist Baath Party studied German Romanticism, including, Mr. Berman notes, "the philosophers of national destiny, of race and of the integrity of national cultures." ...

...

These Arab and Islamic movements have had nightmarish results, "fully as horrible," in Mr. Berman's words, "as the Fascism and Stalinism of Europe." In the Iran-Iraq war of the 1980's, more than a million people were killed, gassed and tortured. ...

...

The war now being faced, Mr. Berman argues, will take years on many fronts using many styles of confrontation and education — just like the cold war. What is needed, he proposes, is a "war of ideas" like the one that eventually toppled Communism, and one that will be accompanied by reform of Arab societies. He supports the war in Iraq but he believes that after a strong beginning, President Bush has failed to make the best case one could for the larger war on terror.

But old political lines are also breaking down and new ones are forming. ... [I]t is unclear how sympathetic many segments of the left would be with Mr. Berman's analysis. Liberalism and the left may now be even more split over the nature of the war on terror than they once were over the nature of Communism. At times, in fact, it seems as if politics is about to become a continuation of war by other means.

III

"British find 200 bodies, grisly photos near Basra," Reuters (April 5, 2003), in Boston Globe (online):

SOUTHERN IRAQ, April 5 -- The desiccated remains of as many as 200 people were found by British soldiers on Saturday in an abandoned warehouse in southern Iraq along with catalogues of grisly photographs of what could be torture victims.

Dozens of wooden coffins and plastic bags full of bones filled one building in the rundown military complex near Iraq's second city of Basra, said correspondents with British forces.

In an adjoining cargo container, soldiers found scrapbooks stuffed with faded photographs of corpses, most of which appeared to have gunshot wounds to the head.

Vanessa Allen, a correspondent with Britain's Press Association, reported that some of the faces had been burned, mutilated or scarred by horrific wounds.

...

Bundles of bones and scraps of military uniforms were visible inside the plastic bags....

... The teeth in some of the skulls were missing.

Outside the warehouse was a wall dotted with a spray of bullet holes, most at head height. Tiny concrete cells were discovered nearby.

... In several, rusting metal hooks dangled from iron poles embedded in the ceiling.

The Limits of Common Sense in Inference and Decision

Of course, not all decisions can be the result of nothing more than common sense.

Democracy, or politics, exists because common sense is not enough.

Some conflicts in preferences and judgments can be resolved only through choice.

So we need politics.

Even in law.

But there must be limits to choice, democracy, and politics in law.

What are they?

Do we need truth-in-labeling for factual inference and proof?

Perhaps.

Hypocrisy may be a particularly grievous wrong in politics and law: it may offend deeply, it may demean, wound deeply.

Hence, if a legal decision maker wishes to push preferences rather than inferences, perhaps (s)he should say so -- or, in any event, confess ignorance.

What say you all?

Is Common Sense Inscrutable?

Well, it can't be entirely inscrutable, now can it?

We manage to argue about it with each other ..

... and sometimes -- though less frequently than we would like -- we manage to hand over some of our common sense to our children, in part (I assume) because of what we say about it to our children.

So there is some reason to think that common sense is not wholly ineffable, completely otiose.

I like that word, "otiose." I hope I'm using it correctly. I mean -- roughly: "impenetrable to the mind's eye."

Stay tuned.

Making Sense of Common Sense in Inference

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?

Stay tuned!

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.

Common Sense and Inference

Evidence scholarship -- the kind of evidence scholarship conducted by legal scholars, I mean -- has a variety of common presuppositions. Two presuppositions -- or are they canards? -- are very common:

P or C #1: factual inference involves common sense.

P or C #2: common sense involves ineffable intuition.

But now consider this: Douglas Lenat is engaged in an audacious effort to "formalize" and "computerize" common sense knowledge and reasoning.

Is this project not only audacious, but also ... quixotic? Absurd? Bizarre?

Perhaps. But first give the man a break -- and consider the following account in Stanford Magazine (March/April 2002):

To become smarter, the former Stanford professor [Lenat] argues, computers don’t need faster chips or bigger memories. They need an infusion of common sense—all those ordinary facts and assumptions about the world that enable people to survive and communicate with each other. ...

The fruit of his work is Cyc, smart software that according to Lenat knows and applies common sense. Cyc’s schooling has consumed $60 million and 600 person-years of effort from programmers, philosophers and others—collectively known as Cyclists—who have been codifying what Lenat calls “consensus reality” and entering it into a massive database.

...

No other AI project comes close to Cyc’s scale and ambition, says Nils Nilsson, MS ’56, PhD ’58, an emeritus professor of computer science at Stanford. Though AI researchers acknowledge that the “common sense problem” has to be cracked, most are trying to solve it part by part, he says. “I don’t know that anyone is trying to master all of common sense, apart from Doug.”

...

After 18 years of painstaking tutorial sessions, Cyc now holds some 1.5 million mostly banal assertions of this kind, all rendered in a formal language developed for the purpose. A few examples:

Water is wet.

Every person has a mother.

When people die, they stay dead.

...

Will his brainchild live up to its billing? Vaughan Pratt ... expresses doubt. ... [Pratt, an emeritus professor of computer science at Stanford,] ... thinks the problem is Cyc’s premise. Instead of stuffing computers full of knowledge to make intelligent machines, he says, we need to focus on improving their ability to reason and manipulate facts.

Lenat derides this approach as the result of physics envy. He says many AI researchers are consumed with finding the “Maxwell’s equation of human thought”—a simple, elegant formulation that “you could put on a T-shirt and that would unlock the secret of intelligence.” Until that happens, Lenat says, his way is the only way to get a computer to learn common sense.

Is Doug Lenat a post-modern Don Quixote? Or does he hold an important key to intelligence, even human intelligence?

To find out, come to my conference on "inference, culture, and ordinary thinking in dispute resolution" in New York City! Doug will deliver his spiel on Monday, April 28, 2003, at 2:15 p.m. et seq.; and then Henry Prakken, Glenn Shafer, other panelists, and, yes, even you Dear Reader!, will have the chance to question Doug and challenge his views and his audacious bodacious project.