Thoughts on reading OWH Jr, "Natural Law"

Cogito ergo sum.
René Descartes

Oliver Wendell Holmes Jr. published "Natural Law" in The Harvard Law Review in 1918. The author, wounded three times and mortally ill once in the Civil war, includes this in the article about why men fight:

That the universe has in it more than we understand, that the private soldiers have not been told the plan of campaign, or even that there is one, rather than some vaster unthinkable to which every predicate is an impertinence, has no bearing upon our conduct. We still shall fight—all of us because we want to live, some, at least, because we want to realize our spontaneity and prove our powers, for the joy of it, and we may leave to the unknown the supposed final valuation of that which in any event has value to us. 

The essay is a denial that there exists Natural Law -- the idea that there are laws so natural that they are recognized by all men. Holmes writes:

As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. To do it they must eat and drink. That necessity is absolute. It is a necessity of less degree but practically general that they should live in society. If they live in society, so far as we can see, there are further conditions. Reason working on experience does tell us, no doubt, that if our wish to live continues, we can do it only on those terms. But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights.

I suppose that brain science has provided some insights since Holmes wrote. We seem to have some innate recognition of fair play and good behavior built into the brain, and I suppose that leads to something like natural law.

The United Nations has proclaimed The Universal Declaration of Human Rights, and has established a number of conventions implementing those rights. I don't know if the fact that the world has proclaimed a universal set of human rights confirms Holmes' opinion or rejects it. However, today the world's greatest forum agrees that there are things that people must do and other things from which they must abstain.

I rather like Holmes' arbitrary fact that we must eat and drink in order to live. There are a large number of such "arbitrary facts" that come from common knowledge. We have to believe them to get by in our daily lives. Of course, some common knowledge is not true, but I think people can distinguish common knowledge statements that are these "arbitrary facts" and other common knowledge statements that are less certainly true, or even unlikely to be true.

Holmes also writes:

If … the truth may be defined as the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can’t Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my sense or my reason as to recognize that if I am alone probably something is wrong with my works. 

Certitude is not the test of certainty. We have been cocksure of many things that were not so. If I may quote myself again, property, friendship, and truth have a common root in time. One cannot be wrenched from the rocky crevices into which one has grown for many years without feeling that one is attacked in one’s life. What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back through the past eternity of my life. But while one’s experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means skepticism.

What would I give to have published "Certitude is not the test of certainty. We have been cocksure of many things that were not so." The man could write!

I like the idea that one can consider that any statement has a level of credibility, a value indicating how likely it is that the statement is true. Punters do this all the time, assigning a numerical value to the statement that horse suchandsuch will win the next race. It seems to me that this is explicitly the state of mind required of a scientist -- no assertion is judged absolutely true. Indeed, the fondest wish of the true scientists is to find an experiment which successfully challenges the well formed prediction of a well established theory and scientific paradigm.

On the other hand, Holmes does not recognize in his essay that assertions from geometry have a basis different in nature from ordinary assertions. Geometric assertions follow logically from a small set of axioms. If you accept the axioms, and you accept the rules of logic, and you accept the validity with those rules have been used in the demonstration of a geometric assertion, then you should accept the assertion as credible.

That is but an example of a more general fact -- not all processes for the validation of an assertion are equally credible. Assertions made by scientists, when they are grounded in controlled observations that have been replicated, and supported by well established bodies of theory, and subjected to peer review, are more credible than most assertions. Assertions made in social media by individuals unknown to you, and which you can not find supported in other places and media, are obviously less credible than most assertions made to you in their professional roles by your teachers, your doctors, or your lawyers.

Holmes' follow-up to the last quote is:

Not that one’s belief or love does not remain. Not that we would not fight and die for it if important—we all, whether we know it or not, are fighting to make the kind of a world that we should like—but that we have learned to recognize that others will fight and die to make a different world, with equal sincerity or belief. Deep-seated preferences cannot be argued about—you cannot argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours.

A thought worth remembering!

Holmes was reading about natural law as part of the discussion he was having with others about freedom of speech. The first amendment to the U.S. constitution prohibits laws restricting freedom of speech, yet it is clear that some such laws are permissible. A government clearly is going to prohibit someone disclosing military secrets to the enemy thereby endangering the nation or its military. Holmes, as a Supreme Court Justice in World War I was clearly going to have to face cases involving such restrictions on speech, but he would also face cases that otherwise dealt with the freedom of speech.

Government laws penalize libel and slander -- there is no right to spread false stories about others; however truth is an absolute defense to libel and slander. So the question arises in law as to whether a spoken or written statement is true or not. Some such questions are easily resolved. A said B had a criminal record, and A produces public reports of B's convictions of several crimes.

Today we are seeing the results of yesterday's elections. The fundamental question before the country was whether a Republican or a Democratic majority in the Senate would be better for the nation; whether it would be better to elect Democrats or Republicans in the Senate races. We will not easily achieve consensus on those, but the majority of voters will select an option for the country. In the long run, perhaps decisions are made: we no longer have Federalists nor Antifederalists, Whigs nor Know Nothings (and the Democrats and Republicans are not what they once were).

On lesser issues, perhaps it is possible to come to consensus: did the economy develop better under George Bush or Barack Obama? Were the wars in Iraq and/or Afghanistan good wars? How best should the government act to promote health of the public? In these areas some credible statements can be adduced from statistics.

The problem may be to achieve information literacy in the public, so that its members may have somewhat more comparable views as to which statements are credible. Perhaps too, we will have to find ways to achieve more rational debate, in which people discuss ideas and data. Certainly, I feel we should reduce the noise introduced in the process by big money financing political advertising that ignores the truth value of claims in favor of their political impact.