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Wednesday, July 02, 2014

The Maize and Blue Notebook: An Introduction and Thoughts on Certainty a la Wittgenstein

Preface to “The Maize and Blue Notebook”

What we publish here (mainly after the break) belongs to that period in Lipshaw’s life following his decision to participate in the Michigan Men’s Football Experience on June 4-5, his complete rupture of his right Achilles tendon in the third (high knee running) drill on the first day, his decision thereupon to participate in the Big House scrimmage nevertheless (as evidenced at 6:15 of the linked video), surgery under general anesthesia on June 9, and recovery thereafter with a supply of generic Vicodin (the picture below left being one taken in a rare moment of lucidity).

IMG_0587It seemed appropriate to publish this work by itself. It is not a selection; Lipshaw wrote this on several pages of lined foolscap, undated, and left them on a table at Simon’s Coffee House on Mass Ave. near Linnaean Street when he wheeled himself off on his knee scooter to a training session at Karma Yoga the other side of Harvard Square. Coates, Goldberg, and Fried reported seeing him on a bench near Langdell Hall, but I (G.E.M.L.) cannot now recall why I am under such an impression. But there is no doubt that the pages were inserted in an acetate maize and blue cover.

G.E.M. Lipscombe, Cambridge, 02 July 2014

The Maize and Blue Notebook

 1.  Can one assert with certainty that all Canadians are nice?  "I know that Canadians are nice." Markel [ed. Dan Markel, D'Alemberte Professor, Florida State University College of Law] seems nice and he is Canadian (at least for a while). If the proposition is that all Canadians are nice, and Markel is a Canadian, can we be certain he is nice?  

2.  "I know Markel is nice."  In order to see how unclear the sense of this proposition is, consider that he called my work "orthogonal to existing debates."  While this may be true, is it nice?  So how can we be certain that Markel is nice?  Maybe he has still not gotten over that I referred to him in print as "the Johnny Carson of new bloggers" (to make a point about metaphors).  [Ed.:  The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 41 Seton Hall L. Rev. 1, 59 (2011).]

3.  Whether it is pompous as all get-out to refer to Wittgenstein depends on whether we are doing it seriously or in parody.

4.  I did it once!  Not only referred to Wittgenstein in the presence of Sarat at a Law & Society event in Amherst [ed. Austin Sarat, and this likely refers to a meeting of the Northeast Law & Society Association meeting], but reached into my briefcase and pulled out the hard copy edition of Anscombe's translation of Philosophical Investigations.

5.  Whereupon Sarat observed that it reminded him of this:  

6. But perhaps it is time to get to the point.

7.  In his notes titled "On Certainty," L.W. wrote: "The difference between the concept of 'knowing' and the concept of 'being certain' isn't of any great importance at all, except where 'I know' is meant to mean: I can't be wrong." (para. 8)

8.  There are instances in which a statement about what we know, even if not true, still makes sense because we can imagine an instance in which it would be true.

9.  So I can say, "there is my hand" or "Markel is a Canadian (for a while)" and it follows from those assertions that what I said is so.  But L.W. says - wait a sec, bub, you can't say that what is so follows from the utterance "I know."  Even if it's not my hand but my dog's paw or Markel was naturalized a week ago, my statement in the language game is sensible.

10. Not so for an assertion that I know something and cannot be wrong about it.  "That he does know remains to be shown." (para. 14)

11. L.W.: "It needs to be shown that no mistake was possible. Giving the assurance 'I know' doesn't suffice.  For it is after all only an assurance that I can't be making a mistake, and it needs to be established objectively that I am not making a mistake about that."  (para. 15)

12. There's an infinite regress about "I know" when asserted as certainly as "there is my hand," if "I know" means that I am incapable of being wrong, because how do I establish objectively that I really know in the sense of being capable of being wrong!!!!

13. Oy vey.

14. "'I know' often means: I have proper grounds for my statement." (para. 18)  Well, that would be okay if everyone who hears the phrase "I know" knows that all I am saying is that I have a reasonable basis for saying I know what I know -- that this is what "I know" means under the rules of the language game.

15.  But if "I know" doesn't mean "for certain," it really doesn't mean much at all, because then it means the same thing as "I believe," "I surmise," "I am convinced," "I have no reason to doubt...."

16.  Most of the time this isn't a problem.  But it is if our discussion is about whether something exists at all.  So if we are talking about doubt regarding the existence of my hands doing this typing, that's just a kind of silly discussion because nobody seriously doubts that I know those are my hands.

17. Our rule in the language game is that there's an implicit "in ordinary circumstances," because it is possible that there COULD be doubt about the existence of my hands, but if you really wanted to talk about it like that, you'd be obliged to make that statement clear under the rules of our discourse (the language game).

18. What becomes clear from the regress of one's own certainty is that we cannot infer how things are just from our own certainty.  "Certainty as it were a tone of voice in which one declares how things are, but one does not infer from the tone of voice that one is justified."  (para. 30)

19. "I know" has a particular meaning about the relation of the speaker and a fact, and not about the relation between the speaker and the sense of a proposition like "I believe." (para. 90)

20. Ribeiro [ed. Brian Ribeiro, philosophy, University of Tennessee] asks a good question about philosophy and disagreement [ed. "Philosophy and Disagreement," Critica 43 (127) 3-25 (2011)].

21.  He concludes that they “confront us with an unresolved, and seemingly unresolvable, challenge to the rationality of philosophical discourse, thereby raising the spectre of worrisome philosophical skepticism.”

22. What is a hard case? Not one in which one of the interlocutors is ignorant of a critical fact - e.g., an argument about the temperature in which one person has access to a thermometer and the other does not.

23. Or that the other person is uneducated - e.g., a child who believes that a stork has brought his baby sister.

24. Or that the other person is under a cognitive liability (e.g., someone who simply does not have the mental capacity to understand a mathematical proof). 

25. I have friends in the legal academy like Oman [ed. Nathan Oman, William & Mary] and Bainbridge [ed. Stephen Bainbridge, UCLA] whose access to information, education, and intelligence are unimpeachable.

26. Nevertheless, they are very publicly Mormon - Oman - or Catholic - Bainbridge. I feel quite certain (note that I do not "know" in the sense I cannot be mistaken) they believe things as true - for example, about the divinity of Jesus, miracles, transubstantiation, Joseph Smith's vision, the Book of John, the Book of Mormon - that I am quite sure no amount of reasoned persuasion could cause me to believe.

27,  L.W. and Ribeiro think (know?)  this kind of disagreement is incapable of reconciliation.

28. A change in belief of one of the interlocutors requires conversion. “If reconciliation is to occur, then one of us must forsake reason-giving, (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute.” [ed.: from Ribeiro's essay]

29.  Hobby Lobby.  Once again Markel is right.  I am orthogonal.

30. People who are bloggers and Facebook friends (and I like to think - know? - are real friends), whose intellect I respect immensely, like Bainbridge [ed. Stephen Bainbridge, UCLA] and Aviram  [ed. Hadar Aviram, UC-Hastings] disagree.  Aviram thinks Hobby Lobby is odious.  Bainbridge's only disappointment is that he wasn't cited in the opinion.

31. Is it that "know" in the sense of "I cannot be wrong" is simply inapplicable here.  That the argument is about the "ought" rather than the "is"?

32. The interlocutors give off every indication that they cannot be wrong in their views.

33. Can one know an "ought" in the sense of "I cannot be mistaken"?  Are there normative facts?  What counts as an adequate test of the the proposition "there are normative facts"?

34.  Return to L.W.:  "Can one say: 'Where there is no doubt there is no knowledge either'? Doesn't one need grounds for doubt? Wherever I look, I find no grounds for doubting that....  I want to say: We use judgments as principles of judgment." (paras. 121-124)

35. Law is rules. It is an issue of rule-following. If A, then B.  A.  Therefore B. But what rule?  That is the judgment!  How do we make it?

36. L.W. again:  "But isn't it experience that teaches us to judge like this, that is to say, that it is correct to judge like this? But how does experience teach us, then? We may derive it from experience, but experience does not direct us to derive anything from experience.  If it is the ground for our judging like this, and not just the cause, still we do not have a ground for seeing this in turn as a ground.  No, experience is not the ground for our game of judging.  Nor is its outstanding success." (paras. 130-31)

37. L.W. again: "We do not learn the practice of making empirical judgments by learning rules: we are taught judgments and their connexion with other judgments.  A totality of judgments is made plausible to us." (para. 140)  This is very Kantian of L.W. - some judgments are a priori, and not just analytic ones!

38. The regress of certainty:  "Doesn't testing come to an end?" (para. 164)  "The difficulty is the groundlessness of our believing." (para. 166)

39. L.W. comes around to the view of Hans Albert, one of Popper's students, and the Munchhausen trilemma:  all efforts to reduce what we know to a fundamental proposition end in an infinite regress, circularity, or brute belief.  Hence, "Well, if everything speaks for an hypothesis and nothing against it - is it then certainly true?  One may designate it as such. - But does it certainly agree with reality, with the facts? - With this question you are already going around in a circle.  To be sure there is justification; but justification comes to an end." (paras. 191-192)

40. If the insurance plan pays for Viagra for men, shouldn't it pay for abortifacient birth control for women?  Fine with me, although this is not something I "know" for certain - it simply seems fair.

41. If Mom and Pop own a grocery in the form of a corporation versus a partnership or an LLC, should Mom and Pop be required to do something in the administration of their business that violates their sincerely held religious belief (like if they are orthodox Jews, want to close on Saturday, but remain open on Sunday even if the latter means violating the Blue Laws)?  Let them follow their religion, it's no skin off my nose.

42.  There is a hypothetical world of perfect information and free choice in which we might say that if you are Mormon or Scottish Presbyterian and working for Mom and Pop on Sunday violates YOUR sincerely held belief, you just shouldn't work for Mom and Pop.

43.  It seems highly unlikely that a diversified public corporation is ever going to want the publicity, the employee disruption, the potential boycotts, that go along with this kind of debate.  And the board is just as likely to be as diverse, at least religiously, as the the employees or the customers.

44. No, this is an empirical problem in a way.  At least pragmatically.  Just how "free" are the employees?  It's probably not as perfect a market as the conservatives would like to say, and probably less "oppressive" than the liberals think.

45. But the one really pragmatic problem is being unfair or providing disparate treatment to men and women where there is limited choice or mobility, as might occur when you have a company of very large size, akin to a public corporation, but with shareholders more akin to Mom and Pop.  So if women are trapped working for Hobby Lobby and its ilk, this is highly problematic.

46. This is what makes it a hard case as a matter of knowledge.

47.  But for one friend to call the majority opinion "odious," and another to refer to "left-wing frenzy" about it, when neither friend is misinformed, under-educated, or operating with limited mental capacity, tells me that no conversation, no discourse, no persuasion is going to resolve the issue.  

48. Moving from one side of the issue to the other is instead going to be a matter of conversion.

49. So what do we do? Refrain? But quietism seems not an option.

50. Epistemic humility is good.

51. Ah, Markel is nice. He posted a middle of the road assessment, but it's on Facebook.

Ed. note:  This concluded the notebook, except for the following marginal note:  "I have discovered a truly marvelous resolution of this, which this margin is too narrow to contain."


Posted by Jeff Lipshaw on July 2, 2014 at 05:09 PM | Permalink


Vicodin is powerful stuff. I liked the video, though.

Posted by: Orin Kerr | Jul 3, 2014 1:16:41 AM

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