The Law Explained: Oliver Wendell Holmes and the Limits of Concrete Reason

The frightening thing about American law is how dependent it is on strictly individual opinions.  A jury of your peers can be questions to really not be categorically correct.  At the risk of sounding like an elitist, I will venture to ask an important question... Who exactly qualifies as your peer?  Is it people with advanced degrees in philosophy or any other liberal art, or people whose concept of the law comes from watching re-runs of Judge Judy on television?  And what about the judges?  A judge who is up for reelection might be inclined to think of his career first and send an innocent man to prison simply to have a record that is tough on crime.  I am not suggesting that this is the case all of the time, but human nature is a funny squirrel and it open the door for formulating these types of difficult questions.  With some of the decisions made at the Federal level lately, I wouldn't be surprised one bit if a Federal judge renders an opinion one way or the other based on advancement opportunities.  At least I can say that I am not pulling this out of the abyss of my non-exercised academic brain.  Supreme Court Justice Oliver Wendell Holmes held such ideas about the law and went as far as suggesting (rather firmly I might add) "that law is nothing more or less than what judges do."  

"The Path of the Law" was Justice Holmes' most definitive insight into the processes of the law.  In it, Holmes explains the law as a series of experiences, but his concept of experience was riddled with non-concrete categorical imperatives.  For example, Menand points out the problematic: "It is often hard to distinguish, in Holmes's writing, between the descriptive and the prescriptive--between what Holmes believed the law was in practice and what he thought the law ought to be.  Holmes didn't do a lot to help his readers make this distinction, but the reason is that his favorite method of argument was to show that what the law ought to be is what it pretty much already is, only under a wrong description....  Whose experience?  The experience, Holmes said, of 'an intelligent and prudent member of the community.'  He didn't mean by this a particularly prudent and intelligent person--a judge, for instance.  He meant, precisely, a person who is neither particularly prudent nor particularly imprudent, an 'average member of the community"--in other words, a jury.  Could we count on these so-called members of the community to know how to judge, considering the aversion to anything logical and reason-based in today's society?  With political correctness running amok in just about every single region of American life, who could even begin to count with anything resembling a fair trial?

I'm not in any way criticizing the contributions of Oliver Wendell Holmes to American jurisprudence.  What I am trying to advocate here is a departure point for a critical analysis of the American justice system.  This is something that perhaps a few of us actually think about, or would even consider until we're knee-deep into some legal issue that takes us to court.  For many years I never understood the general public's aversion to jury duty, and, not having served on a jury myself, I cannot speak from experience.  Yet the amount of weight that falls on the shoulders of people like you and me (intelligent and prudent members of society) in, say, a criminal case seems to require more than just emotional thought or intelligence and I dare say NOT ALL people are prepared or even equipped to go through such an experience.  Wave a jury of your "peers?"  Then pray the judge assigned to your case is not up for reelection, or on the fast-track to an upper court appointment.

Chauncey Wright: The Man, The Myth... The Sad and Troubled Paradox

Chauncey Wright, one of the main characters of Louis Menand's "The Metaphysical Club," was considered by many the quiet driving force behind the group.  The reason for this claim is that Wright lived for conversation and therefore served as the intellectual "fuel" of the group.  Officially, he was a "computer," meaning a mathematician paid to do calculations all day.  When not calculating, Wright lived the life of the bachelor scholar.  He was an alcoholic and suffered from massive bouts of depression.  He was able to offset his mood in public because people loved his interlocution.  Back in the mid to late 1800s, the "life of the party" wasn't the drunk uncle wearing a lamp shade on his head, or the suave operator with the funniest jokes and quickest lines; the life of the party back then was the guy who could sustain an intellectual conversation without monopolizing the affair.  Chauncey Wright was just that perfect in conversation.  He was, however, troubled in many, many painful ways.

Chauncey Wright was not an antagonist or a contrarian.  He was an intellectual powerhouse that swam with the biggest minds of the epoch.  The mid to late 1800s were also a time of social decorum, or propriety and extremely conservative protocol.  Unfortunately for Wright, he didn't meet several of the categorical standards.  For as much a social talent when it came to conversation, he was a life-long bachelor and his interest in the opposite sex seems to have remained either a secret or uncatalogued to this day.  Wright boarded in homes while working out his ideas and attending meetings of The Metaphysical Club.  He also had an extremely soft heart and did an incredible amount of good in quiet and anonymous ways.  He helped locate and free the children of Mary Walker, a fugitive slave who ran a boarding house where Wright lived for some time.

His ideas were a mixture of his contemporaries and good old fashion European cutting edge.  Menand sums it up this way: "What Wright meant by positivism was, at bottom, an absolute distinction between facts and values.  Fact was the province of science and value was the province of what he called, always a little deprecatingly, metaphysics.  Wright thought that metaphysical speculation--ideas about the origin, end and meaning of life--came naturally to human beings.  He didn't condemn such ideas out of hand.  He just thought they should never be confused with science.  For what science teaches is that the phenomenal world--the world we can see and touch--is characterized, through and through, by change, and that our knowledge of it is characterized, through and through, by uncertainty."  There's enough in this passage to understand that Wright was focused on bringing in the opposition to some very lofty ideas being held at the time.  I can imagine how The Metaphysical Club (people like Charles Pierce, William James, Benjamin Pierce, Oliver Wendell Holmes and the rest, all of whom corresponded heavily with each other) reacted to some of Wright's hard questions.  James was particularly influenced--perhaps not by Wright's writing which he found obfuscated and difficult--in conversation and by Wright's mere commanding presence.  Holmes was particularly full of praise for Wright: "Chauncey Wright, a nearly forgotten philosopher of real merit, taught me when young that I must not say necessarily about the universe, that we don't know whether anything is necessary or not."

I look back on the days when I was teaching full-time at ______, and those long weekend when, as a bachelor scholar, I used to close the door of my apartment behind me on Friday afternoon after work, and not open it again until Monday morning when I headed out to the classroom.  I wonder if the changes that came to my life in 2005 had not taken place if I wouldn't have ended life Chauncey Wright.  That's not to say I would have drank myself to oblivion in a sea of depression, for I was very happy to live as I did.  But Chauncey Wright died at the age of 45, after two strokes which left him unable to care for himself, and as I said, I was happy living quietly among books, writing and my teaching.  Life has changed too much to make a comparison.  I am very happy to have learned about Wright... a true TITAN for evidence and the balance between the empirical and the metaphysical.

A Roll of the Dice... Probability "Explained"

Writing about "The Law of Errors," in his masterful work "The Metaphysical Club: The Story of Ideas in America," Louis Menand explains discrepancies in calculative mechanics this way (which I find brilliant, by the way): "The solution to this problem [the problem of not knowing what produces a discrepancy] was borrowed from probability theory--specifically, from a formula published in 1738 by a mathematician named Abraham De Moivre, a Huguenot who had emigrated to England, in the second edition of a work called The Doctrine of Chances.  When you roll two dice, you get one of thirty-six possible combinations (one and one, one and two, one and three, and so on, up to six and six).  These thirty-six combinations can produce eleven possible totals (two through twelve).  The total with the greatest likelihood of coming up is seven, since a seven can be produced by any of six different combinations (one and six, two and five, three and four, four and three, four and two, six and one).  Only five of the thirty-six combinations will produce an eight or a six, only four will produce a nine or a five, and so on, down to the two and the twelve.  If you chart on a graph the results of many rolls of the dice, with the totals (two through twelve) on the horizontal axis and the number of times each total comes up on the vertical axis, you will eventually get points that connect to form a bell-shaped curve.  The highest point on this curve will be at seven on the horizontal axis (approximately one-sixth of your throws will produce some combination of numbers adding up to seven), and the curve will slope downward symmetrically on either side to two and one end and twelve at the other."

What I find most fascinating about this is the fact that in gambling there are many ways of calculating risk this way, enabling experienced and knowledgeable gamblers to "beat" the house again and again.  Case in point: the mathematical genius that is card-counting. While its application to "real" life is hard to interpret right at this moment, I am going to take some time this summer to study this roll of the dice probability issue and come up with some results.  I don't know how the roll of the dice game works at casinos but my curiosity has been cracked and now there'll be hell to pay :-)