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Monday, July 29, 2019

Blogging with Outtakes - Existentialists, Asymptotes, and Parachutes

Photo-1540256986065-af6d17eab40bThe bad news is that I missed the start of the guest blogging I promised Howard by a full month.  The good news is that I had two excuses (a) our first grandchild was born on July 3 and I seem to waste inordinate amounts of time curating baby pictures, and (b) I was finishing this summer's project.  The upshot of (b) is that by the process of some fairly brutal self-editing I have the drafting equivalent of a portfolio of outtakes.

The piece isn't quite ready for prime time via SSRN, but its title is Unsure at Any Speed: Lawyering Somewhere Between Algorithms and Ends.  It's a contemplation of how we'll reconcile the capabilities of digital lawyering and human lawyering. That means I thought a lot about the differences between what it means to have a brain comprised of flip-flops and P/N junctions, on one hand, and neurons, on the other.  And as it's where science melts into philosophy, it's just made for metaphors that live for a time between drafts 1.2 and, say, 1.9.  Alas, they ultimately have to be sacrificed in the interest of the reader's patience with the filigrees of my cranial neurons.

The risk of metaphor overload is highest when you are wrestling with the very concepts of complementarity, irreconcilability, paradox, and  irreducibility. Those are at the core of what I think is the difference between not just thinking like a human versus a machine, but also being like a human versus a machine. Hence, my existentialist turn. I am more than the physical or social properties a third-person could observe about me. What makes me me” is that I am capable of having an attitude about my own objective existence, that I am engaged practically in the world, that I am a subjective agent capable of action by way of my own will.  Give that one a try, ROSS.  Unless a human like me programs you otherwise, you are doomed to be the two-handed lawyer ("on the one hand; on the other hand") that business people despise.

So I'm fascinated with the ways we can try metaphorically to capture the complementarity of just thinking or even deciding, on one hand, and acting, on the other. Think about that moment after you've clicked "Start New Submission" on SSRN, uploaded the draft and the abstract, chosen your journals, and are about to submit. If you are like me, that is the equivalent in academia to stepping out of the airplane in sky diving. No amount of thinking about it substitutes for the act itself.

I wrote and never used, much less edited out, a metaphor from mathematics.  "Discrete and continuous" is another irreconcilable complementarity. In mathematics, every real number is something of an illusion.  The simplest numbers to understand are “natural” or “counting” numbers like 1, 2, or 154.  They are discrete.  You could use your and other peoples’ fingers and toes to represent them.  Rational numbers are slightly more abstract: they are numbers that can be expressed as a ratio of two natural numbers.  A fraction like 1/9 is rational, even though its decimal representation is an infinite string of ones to the right of the decimal point.  Irrational numbers are those that cannot be expressed as such a ratio; examples are the square root of 2, pi, and e, the base number for a natural logarithm.  Real numbers are the continuum of all numbers that are not imaginary, i.e. any number you could think of that is rational or irrational or sits somewhere between any two rational or irrational numbers. 

But that is the very point of the illusion of continuity.  The mathematician Richard Dedekind showed that a real number is a cut or a slice – in the jargon of calculus, a limit or asymptote – that separates all the numbers below it from all the numbers above it.  In the case of a real number that is not rational, the set of all numbers below it does not have a greatest element; it merely converges on the real number. It is, paradoxically, both a spot on the continuum of all numbers and not a spot in the sense that you can ever actually reach it.

I wanted to say in the article that one's passage through time and the actions one takes at any moment µ in that passage create a similar illusion of discrete and continuous. A single moment µ in which we act separates the set of all past moments from the set of all the future moments. All past events converge on µ, a moment which is not a member of the set of all past moments. And in that moment µ randomness, luck, or will may operate.  Yet we are inclined to see past and future moments as one continuous set, most because we cannot re-experience µ.  By the time we are considering µ at moment β, µ is merely a member of the set of all moments preceding β.

I didn't say it then.  Now I will.  "Status: Publish Now."  "Publish."  Click.  Oh no. I hope the parachute opens.

Posted by Jeff Lipshaw on July 29, 2019 at 05:05 PM in Blogging, Legal Theory, Lipshaw | Permalink


“I am more than the physical or social properties a third-person could observe about me.” I agree, and a number of philosophers (both classical and contemporary) most of whom are considerably more adept at philosophizing than was Rorty (as was his first wife, Amélie Oksenberg Rorty), would agree. For a brief list of more recent works that make arguments, directly or by implication, in support of Jeff’s proposition, I proffer the following:
• Appiah, Kwame Anthony. The Ethics of Identity (Princeton University Press, 2005).
• Bruner, Jerome. Acts of Meaning (Harvard University Press, 1990).
• Cassam, Quassim, ed. Self-Knowledge (Oxford University Press, 1994).
• Cottingham, John. On the Meaning of Life (Routledge, 2003).
• Dilman, Ilham. Freud and Human Nature (Basil Blackwell, 1983).
• Dupré, John. Human Nature and the Limits of Science (Oxford University Press, 2001).
• Düwell, Marcus, et al., eds. The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014).
• Elster, Jon, ed., Multiple Selves (Cambridge University Press, 1986).
• Fingarette, Herbert. The Self in Transformation: Psychoanalysis, Philosophy and the Spirit of Life (Basic Books, 1963).
• Ganeri, Jonardon. The Concealed Art of the Soul: Theories of Self and Practices of Truth in Indian Ethics and Epistemology (Oxford University Press, 2007).
• Ganeri, Jonardon. The Self: Naturalism, Consciousness, and the First-Person Stance (Oxford University Press, 2012).
• Gillett, Grant. Subjectivity and Being Somebody: Human Identity and Neuroethics (Imprint Academic, 2008).
• Hacker, P.M.S. Human Nature: The Categorial Framework (Blackwell, 2007).
• Hacker, P.M.S. The Intellectual Powers: A Study of Human Nature (Wiley-Blackwell, 2013).
• Hacker, P.M.S. The Passions: A Study of Human Nature (John Wiley & Sons, 2018).
• Hodgson, David. The Mind Matters: Consciousness and Choice in a Quantum World (Oxford University Press, 1991).
• Hutto, Daniel, D., ed. Narrative and Understanding Persons (Cambridge University Press/Royal Institute of Philosophy, 2007).
• Hutto, Daniel D., ed. Narrative and Folk Psychology (Imprint Academic, 2009).
• Kateb, George. Human Dignity (Belknap Press of Harvard University Press, 2011).
• McCrudden, Christopher, ed. Understanding Human Dignity (Oxford University Press, 2014).
• Midgley, Mary. Beast and Man: The Roots of Human Nature (Routledge, revised ed., 1995).
• Murdoch, Iris. Metaphysics as a Guide to Morals (Chatto and Windus, 1992).
• Ram-Prasad, Chakravarthi. Divine Self, Human Self: The Philosophy of Being in Two Gītā Commentaries (Bloomsbury Academic, 2013).
• Rorty, Amélie Oksenberg. Mind in Action: Essays in the Philosophy of Mind (Beacon Press, 1988).
• Rosen, Michael. Dignity: Its History and Meaning (Harvard University Press, 2012).
• Schechtman, Marya. The Constitution of Selves (Cornell University Press, 1996).
• Siderits, Mark, Evan Thompson, and David Zahavi, eds., Self, No Self? Perspectives from Analytical, Phenomenological, and Indian Traditions (Oxford University Press, 2011).
• Smith, Christian. What Is a Person? (University of Chicago Press, 2011).
• Sorabji, Richard. Self: Ancient and Modern Insights about Individuality, Life, and Death (University of Chicago Press, 2006).
• Sprigge, T.L.S. The Importance of Subjectivity: Selected Essays in Metaphysics and Ethics (Clarendon Press, 2011).
• Strawson, Galen. Selves (Oxford University Press, 2009).
• Strawson, Galen. Locke on Personal Identity: Consciousness and Concernment (Princeton University Press, 2011).
• Tallis, Raymond. The Explicit Animal: A Defence of Human Consciousness (Palgrave Macmillan, with a new preface, 1999).
• Tallis, Raymond. I Am: A Philosophical Inquiry into First-Person Being (Edinburgh University Press, 2004).
• Tallis, Raymond. Aping Mankind: Neuromania, Darwinitis and the Misrepresentation of Humanity (Acumen, 2011).
• Taylor, Charles. Sources of the Self: The Making of Modern Identity (Cambridge University Press, 1989).
• Velleman, J. David. Self to Self: Selected Essays (Cambridge University Press, 2006).
• Wollheim, Richard. The Thread of Life (Cambridge University Press, 1984).

Posted by: Patrick S. O'Donnell | Jul 29, 2019 7:17:42 PM

"I am more than the physical or social properties a third-person could observe about me."

Are you? Those who subscribe to social constructionism such as Richard Rorty and Louis Menand would disagree. Indeed, they would look at your statement as a peculiarity of early 21st century life, another example of what Heidegger meant when he said the work of philosophy was to "hold one's time in thought".

Posted by: James | Jul 29, 2019 5:33:56 PM

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