God Falls Prey to the Sorites Paradox

Stanford Encyclopedia of Philosophy, Sorites Paradox (viewed on Jul. 25, 2011):

“The sorites paradox is the name given to a class of paradoxical arguments, also known as little-by-little arguments, which arise as a result of the indeterminacy surrounding limits of application of the predicates involved. For example, the concept of a heap appears to lack sharp boundaries and, as a consequence of the subsequent indeterminacy surrounding the extension of the predicate ‘is a heap’, no one grain of wheat can be identified as making the difference between being a heap and not being a heap. Given then that one grain of wheat does not make a heap, it would seem to follow that two do not, thus three do not, and so on. In the end it would appear that no amount of wheat can make a heap. We are faced with paradox since from apparently true premises by seemingly uncontroversial reasoning we arrive at an apparently false conclusion.” 

 Genesis 18:20-33 (New International Version):

20 Then the LORD said, “The outcry against Sodom and Gomorrah is so great and their sin so grievous 21 that I will go down and see if what they have done is as bad as the outcry that has reached me. If not, I will know.”

 22 The men turned away and went toward Sodom, but Abraham remained standing before the LORD.[d] 23 Then Abraham approached him and said: “Will you sweep away the righteous with the wicked? 24 What if there are fifty righteous people in the city? Will you really sweep it away and not spare[e] the place for the sake of the fifty righteous people in it? 25 Far be it from you to do such a thing—to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do right?”

 26 The LORD said, “If I find fifty righteous people in the city of Sodom, I will spare the whole place for their sake.”

 27 Then Abraham spoke up again: “Now that I have been so bold as to speak to the Lord, though I am nothing but dust and ashes, 28 what if the number of the righteous is five less than fifty? Will you destroy the whole city for lack of five people?”

   “If I find forty-five there,” he said, “I will not destroy it.”

 29 Once again he spoke to him, “What if only forty are found there?”

   He said, “For the sake of forty, I will not do it.”

 30 Then he said, “May the Lord not be angry, but let me speak. What if only thirty can be found there?”

   He answered, “I will not do it if I find thirty there.”

 31 Abraham said, “Now that I have been so bold as to speak to the Lord, what if only twenty can be found there?”

   He said, “For the sake of twenty, I will not destroy it.”

 32 Then he said, “May the Lord not be angry, but let me speak just once more. What if only ten can be found there?”

   He answered, “For the sake of ten, I will not destroy it.”

 33 When the LORD had finished speaking with Abraham, he left, and Abraham returned home.

Intoxication as Mitigation in the Bible

It appears that, while intoxication doesn't fully excuse wrong doing in the eyes of God, it is at least a mitigating factor to consider when judging their actions. In Hosea 4:17-18, the Bible says:

"Ephraim is joined to idols; leave him alone! 

Even when their drinks are gone, they continue their prostitution...."

Exodus: Shifting Canon

My first observation after reading Exodus is that the movie the Ten Commandments is somewhat misleading, and should not be viewed except only by those who have actually read the Bible first and therefore can actually know exactly how much of the movie is just made up.

Yes, the Jewish people are placed by the pharaoh into slavery (1:8-14), and the pharaoh does order the death of all first born Jews (1: 22), after which time, Moses is born and his mothers sets him adrift in the reeds of the Nile to avoid the pharaoh’s death order when he is found and adopted by the pharaoh’s daughter and introduced into a privileged life apart from his people who toil in bondage, (2:1-10). Up to this point, the movie is faithful to the Script.

But in the Bible, there’s nothing about Moses becoming a powerful official in love with an Egyptian woman before he selflessly decides to join his people in slavery. The Bible says nothing about the specific events of his life after infancy and jumps straight into manhood (2:10-11). We can infer that he is aware of his Jewish blood (2:11), but by the time he kills the Egyptian guard for beating one of his people and then flees to avoid punishment, he had never left the privilege of the station he gained when he was adopted by the pharaoh’s daughter.

Besides this, there are discrepancies in the details. In the bible, the pharaoh is only referred to simply as, “the pharaoh,” but in the movie, the pharaoh is named Rameses. I suspect that this is so because the Rameses dynasty was powerful and long, and it’s always best to have your protagonist overcome really powerful enemies.

When I was a kid growing up, I either never read Exodus or didn’t understand it or pay attention if I did read it. I suspect that this is the same with most Christians today. I suspect that none but a precious few actually read the Bible anymore, but that almost all see the Ten Commandments at some point in their life. By common usage, the derivative has replaced the original as canon.

Blogging the Book of Exodus

I just read the Book of Exodus for the first time in my adult life, and I'm kind of shocked by what I read. I'll be blogging a few observations.

Metajurisdiction

All courts and grand juries have metajurisdiction: they have "jurisdiction" to determine whether a case is "within their jurisdiction." See Blair v. United States, 250 U.S. 273, 283 (1919); and see United States v. Mine Workers, 330 U.S. 258, 290-91 (1947); Ex parte Paprskar, 573 S.W.2d 525, 527 (Tex. Crim. App. 1978), overruled on other grounds, Weiner v. Dial, 653 S.W.2d 786, 787 n. 1 (Tex. Crim. App. 1983); Lipshy Motorcars, Inc. v. Sovereign, 944 S.W.2d 68, 71 (Tex. App.—Dallas 1997, no writ).

Incongruity of the Day

Who cares if the lawyer looks bad in front of the press (other than the lawyer himself)? "Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v. California, 314 U.S. 252, 217 (1941) (quoted by Wood v. Georgia, 370 U.S. 375, 389 (1962)).

Freedom of the Press--Unless, of Course, It's About the Press Themselves

A Daily Mail article yesterday carries this instructive anecdote:

"In 2001 the pair [Rebekah Brooks and Elisabeth Murdoch, media mogul Rupert Murdoch's daughter] were photographed on Miss Murdoch's hen night during which the group of friends was being followed in their white stretch-limo by a Ford Mondeo.

Brooks, then Rebekah Wade and editor of the News of the World [a Murdoch publication], called the picture desk and, using the car's number plate, was able to identify the paparazzo driver.

She called him, identified herself and said that unless he stopped following them she'd see to it that no Murdoch publication would do business with him again.

The Mondeo immediately performed a U-turn and disappeared."

Irony of the Day: Getting Credible Evidence from Criminals

For reason that are to my mind not that clear, we distrust the truthfulness of criminals, but most especially felons, those who have been convicted of serious crimes. "At common law a person who had been convicted of a felony was not competent to testify as a witness," a rule which was ultimately "rationalized on the [bald] basis that such a person was unworthy of belief." Green v. Bock Laundry, 490 U.S. 504, 511 (1989). Today, felons are competent to testify in court, but their credibility may be attacked on the stand, or "impeached," simply on the ground that they are a felon, without regard to whether or not the crime didn't "involv[e] dishonesty." Id. at 509 (construing  Fed. R. Evid. 609(a)); id. at 532 (Blackmun, J dissenting) (saying the rule in 609(a) was founded on the determination that "any felony conviction has sufficient relevance to a witness' credibility to be admitted, even if the felony had nothing directly to do with truthfulness or honesty").

Isn't it perfectly rich, then, that so often, the only people that we can actually get to give evidence to convict of crimes are the criminals themselves? The plurality opinion in United States v. Mandujano, 425 U.S. 564, 573-74 (1976) collects quotes and sources:

"Since the subject matter of the inquiry is crime, and often organized, systematic crime—as is true with drug traffic—it is unrealistic to assume that all of the witnesses capable of providing useful information will be pristine pillars of the community untainted by criminality.

The Court has never ignored this reality of law enforcement. Speaking for the Court in Kastigar v. United States, MR. JUSTICE POWELL said: ‘[M]any offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.’ 406 U. S., at 446.

MR. JUSTICE WHITE made a similar observation in the context of a state investigation: ‘[T]he very fact that a witness is called . . . is likely to be based upon knowledge, or at least a suspicion based on some information, that the witness is implicated in illegal activities….’ Murphy v. Waterfront Comm'n, 378 U. S. 52, 102 (1964) (concurring opinion).

* * * 

There is nothing new about the Court's recognition of this reality.... In one of the early cases dealing with the Fifth Amendment privilege, the Court observed: ‘[I]t is only from the mouths of those having knowledge of the [unlawful conduct] that the facts can be ascertained.’ Brown v. Walker, 161 U. S. 591, 610 (1896).

The Capitall Lawes of New-England

In Furman v. Georgia, 408 U.S. 238, 335 (1972) (Marshall, J concurring), Marshall talks about "'The Capitall Lawes of New-England,' dating from 1636, were drawn by the Massachusetts Bay Colony and are the first written expression of capital offenses known to exist in this country. These laws make the following crimes capital offenses: idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, manstealing, perjury in a capital trial, and rebellion. Each crime is accompanied by a reference to the Old Testament to indicate its source." I have found copies online. Here is a photocopy of the broadside in the Library of Congress. Here is an html. version.

Why Retrials Can Offer Freedom

So, imagine that a person gets convicted but appeals, and, on appeal, his sentence is reversed on a technical point with or without proof of prejudice, and he gets a new trial. If this is indeed a technical point, then the remedy of a reversal wouldn't be worth much because the problem would be easily corrected at retrial. This is not so much the case: "The passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible. Thus, while reversal may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution." United States v. Mechanik, 475 U.S. 66, 72 (1986) (internal quotes and brackets omitted) (quoting Engle v. Issacs, 456 U.S. 107, 127-28 (1982)) (quoted by Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

Abusing Witnesses in Front of the Grand Jury

Is it okay for a prosecutor to abuse a defense witness in front of grand jurors? It is as long as the court gives a limiting instruction. See Bank of Nova Scotia v. United States, 487 U.S. 250, 259-61 (1988):

“We must address, however, whether...there was any misconduct by the prosecution that otherwise may have influenced substantially the grand jury's decision to indict, or whether there is grave doubt as to whether the decision to indict was so influenced.

 * * *

The District Court found that a prosecutor was abusive to an expert defense witness during a recess and in the hearing of some grand jurors. Although the Government concedes that the treatment of the expert tax witness was improper, the witness himself testified that his testimony was unaffected by this misconduct. The prosecutors instructed the grand jury to disregard anything they may have heard in conversations between a prosecutor and a witness, and explained to the grand jury that such conversations should have no influence on its deliberations. In light of these ameliorative measures, there is nothing to indicate that the prosecutor's conduct toward this witness substantially affected the grand jury's evaluation of the testimony or its decision to indict.”

The Big Guy and the Little Guy

“[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Branzburg v. Hayes, 408 U.S. 665, 703-04 (1972).

Absurdities under the Fictions of Old Law

Apparently, the territorial limits of grand juries and the forms of old law in England "led to an immunity from indictment for such crimes as were begun in one county and consummated in another." John Proffatt, A Treatise on Trial by Jury, ch. 2, pt. 1, § 54, at 84. Blackstone recounts one instance where "a man was wounded in one county and died in another, [and] the offender was at common law indictable in neither, because no complete act of felony was done in any one of them." 2 William Blackstone, Commentaries, bk. 4, ch. 23, at 303 (and going on to say that by "statute 2 & 3 Edw. VI. c. 24, he is now indictable in the county where the party died”).

Blackstone was a Busta

I have found several instances, and have concluded that there are probably many more, of William Blackstone quoting nigh-verbatim and without attribution the works of Matthew Hale. (The emphasis on the Latin is excluded from all quotes, and old English is in the original.)

On the common law as the law of custom:

"[T]hat Part of our Laws called, Lex Non Scripta, under which I include not only General Customs, of the Common Law properly fo called, but even thofe more particular Laws and Cuftoms applicable to certain Courts and Perfons....” Matthew Hale, The History of the Common Law of England, ch. 2, at 22.

The lex non scripta, or unwritten law, includes not only general customs, on the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.” 1 William Blackstone, Commentaries, intro., § 3, at 63.

On the common law as unwritten law:

“I therefore ftile thofe Parts of the Law, Leges Non Sriptæ, because their Authoritative and Original Inftitutions are not fet down in Writing in that Manner, or with that Authority that Acts of Parliament are; but they are grown into Ufe, and have acquired their binding Power and Force of Laws by a long and immemorial Ufage, and by the Strength of Cuftom and Reception in this Kingdom.” Matthew Hale, supra, at 23.

“I therefore style these parts of our law leges non scriptæ, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” 1 William Blackstone, supra, at 64.

On the subject matter of the common law:

“The Common Law in its ufual and proper Acceptation. This is that Law by which Proceedings and Determinations in the King’s Ordinary Courts of Justice are directed and guided. This directs the Courfe of Difcents of Lands, and the Kinds; the Natures, and the Extents and Qualifications of Eftates; therein alfo the Manner, Forms, Ceremonies and Solemnities of transferring Eftates from one to another: The Rules of Settling, Acquiring, and Tranferring of Properties; The Forms, Solemnities and Obligations of Contracts; The Rules and Directions for the Expofition of Wills, Deeds, and Acts of Parliament. The Procefs, Proceedings, Judgments and Executions of the King’s Ordinary Courts of Juftice; The Limits, Bounds and Extents of Courts, and their Jurifdictions. The feveral Kinds of Temporal Offences, and Punifhments at Common Law; and the Manner of the Application of the feveral Kinds of Punifhments, and infinite more Particulars which extend themselves as large as the many Exigencies in the Diftribution of the King’s Ordinary Juftice requires.” Matthew Hale, supra, at 24 (emphasis added).

(“[The common law], for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires.” 1 William Blackstone, supra, at 68 (emphasis added).

On the territorial limits of the grand jury:

“The grand jury are sworn ad inquirendum pro corpore comitatus; and therefore, regularly they cannot enquire of a fact done out of their county, for which they are sworn, unless specially enabled by act of Parliament, but only in some special cases....” 2 Matthew Hale, Pleas of the Crown 163, as quoted in Rex v. Burdett. 

“The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament.” 2 William Blackstone, supra, bk. 4, ch. 23, at 303. 

I'm So Glad I Live in Legally Modern Times

Apparently, in the more oppressive times in old England, habeas-corpus suits were sometimes used to free people because they had been thrown in jail and then forgotten (presumably, along with the reasons why they had been thrown in jail in the first place). See 2 William Blackstone, bk. 3, ch. 7, at 138 (“[T]he oppression does not always arise from the ill nature, but sometimes from the mere inattention, of government. For it frequently happens in foreign countries (and has happened in England during temporary suspensions of the statute) that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.”).

If the Blouse Fits, You Must Convict

Holt v. United States, 218 U.S. 245, 252 (1910) ("A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him.")

Harry Potter Trivia

In Harry Potter, Professor Lupin was a werewolf. See J.K. Rowling, The Prisoner of Azkhaban 344-45 (1st American ed. 1999). In Latin, the noun "lupus" meant "wolf," and the adjective "lupinus" meant "of a wolf." Elisha Coles's Latin Dictionary (1679), p. 796 of the Google Ebook.

Also in Harry Potter, the wizard council was called the "Wizengamot." See J.K. Rowling, The Order of the Phoenix 137 (1st American ed. 2003). In old England, the "witenagamot" was the predecessor to Parliament that existed from at least 600 A.D. up until the Norman Conquest in 1066 A.D. See Henry St. Clair Feilden, A Short Constitutional History of England, ch. 3, at 89-90.

Disambiguating "Proceeding"

In law, the noun “proceeding,” which is used interchangeably with its plural “proceedings,” is ambiguous, having at least two basic meanings.

For usage indicating that courts use the word “proceeding” interchangeably in the singular or plural, compare Gilbert v. California, 388 U.S. 263, 267 (1967) (Brennan, J); (“The taking of the exemplars was not a ‘critical’ stage of the criminal proceedings”) (emphasis added); id. at 278 (Black, J dissenting in this part) (“The Court rejects Gilbert's right-to-counsel contention in connection with the handwriting exemplars on the ground that the taking of the exemplars ‘was not a ‘critical’ stage of the criminal proceedings entitling petitioner to the assistance of counsel.’ In all reality, however, it was one of the most ‘critical’ stages of the government proceedings that ended in Gilbert's conviction.”) (emphasis added); id. at 291 (Fortas, J dissenting in this part) (“The giving of a handwriting exemplar is a ‘critical stage’ of the proceeding, as my Brother Black states.”) (emphasis added).

It can refer to the entire process of a lawsuit: “The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Black’s Law Dictionary 1324 (9th ed. 2009) (first definition of four general legal definitions).

See Townsend, 372 U.S. at 296 (“That court, considering only the pleadings filed in the course of that proceeding and the opinion of the Illinois Supreme Court rendered on direct appeal, denied the writ.”).

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (Stewart, J) (“points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”) (quoted by Moore v. Illinois, 434 U.S. 220, 227 (1977) (Powell, J); Estelle v. Smith, 451 U.S. 454, 469-470 (1981) (Burger, CJ); United States v. Gouveia, 467 U.S. 180, 188 (1984) (Rehnquist, J); Moran v. Burbine, 474 U.S. 412, 429-30 (1986) ( McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (Scalia, J)).

Lassiter v. Dep’t of Social Services, 452 U.S. 18, 42 (1981) (Blackmun, J dissenting) (“The method chosen by North Carolina to extinguish parental rights resembles in many respects a criminal prosecution.…The State initiates the proceeding by filing a petition in district court….”).

Withrow v. Larkin, 421 U.S. 35, 57 (1975) (White, J) (“There is no logical inconsistency between a finding of probable cause and an acquittal in a criminal proceeding”).

For usage in the context of ineffective assistance of counsel characterizing certain events like arraignment, voir dire, trial, and sentencing of the trial as stages of a larger “proceeding,” see Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (Douglas, J) (“Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding.”) (emphasis added); Gomez v. United States, 490 U.S. 858, 873 (1989) (Stevens, J) (“[I]n affirming voir dire as a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present, the Court wrote….”) (emphasis added); Ross v. Moffitt, 417 U.S. 600, 610 (1974) (Rehnquist, J) (“At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments.”) (emphasis added); Gardner v. Florida, 430 U.S. 349, 358 (1977) (Stevens, J) (“Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.”) (emphasis added).

For usage indicating an equivalence between “proceeding” with a case or broader process, compare Coleman v. Alabama, 399 U.S. 1, 3 (1970) (Brennan, J) (critical stage of the “prosecution”); and id. at 10 (still Brennan, J) (critical stage of the “criminal process”); id. at 12 (Black, J concurring) (critical stage of the “proceedings”); id. at 23 (Burger, CJ dissenting) (critical stage of a “criminal case”).

Also compare United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984) (Stevens, J) (critical stage of the “proceeding.”); with id. at 662 (still Stevens, J) (critical stage of the “prosecution”).

It can also refer to an “act or step that is part of a larger action,” such as a “hearing.” Black’s Law Dictionary, supra (third and fourth definitions).

Compare, e.g., United States v. Gagnon, 470 U.S. 522, 524 (1985) (per curiam) (in-camera “proceeding”); with id. (in-camera “meeting”); id. (in-camera “interview”); id. at 525, 26, 27 (in-camera “discussion”); id at. 528 (in-camera “conference”).

Franks v. Delaware, 438 U.S. 154, 169 (1978) (Blackmun, J) (“Second, the hearing before the magistrate not always will suffice to discourage lawless or reckless misconduct. The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence.”) (emphasis added and omitted from the Latin).

Morrissey v. Brewer, 408 U.S. 471, 475 (1972) (Burger, CJ) (“…if the choice were between a full-scale adversary proceeding or no hearing at all.”).

Gerstein v. Pugh, 420 U.S. 103, 120 (1975) (“The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard—probable cause to believe the suspect has committed a crime—traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.”) (emphasis added).

Heller v. New York, 413 U.S. 483, 493 (1973) (Burger, CJ) (“With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation.”) (emphasis added) (citation omitted).

Pointer v. Texas, 380 U.S. 400, 402 (1965) (“Since the preliminary hearing there, as in Hamilton was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel.”) (emphasis added and omitted from case names).

Hale v. Henkel, 201 U.S. 43, 66 (1906) (“While there may be some doubt whether the examination of witnesses before a grand jury is a suit or prosecution, we have no doubt that it is a ‘proceeding’ within the meaning of this proviso. The word should receive as wide a construction as is necessary to protect the witness in his disclosures, whenever such disclosures are made in pursuance of a judicial inquiry, whether such inquiry be instituted by a grand jury, or upon the trial of an indictment found by them. The word ‘proceeding’ is not a technical one, and is aptly used by courts to designate an inquiry before a grand jury.").

Random Law of the Day: Executive Suspension of Habeas Corpus in the Civil War

See Act of Mar. 3, 1863, c. 81, § 1, 12 Stat. 755.

Aristotle: Ownership and Love

"[T]he two qualities which chiefly inspire regard and affection—that a thing is your own and you love it." Aristotle, Politics, ch. 2, at 60.

"Leviathan": Defining Liberty

“By Liberty, is understood, according to the proper signification of the word, the absence of external Impediments.” Leviathan, ch. 14, at 64.

On a similar liberty under U.S. Const., amends. 5, 14 (“life, liberty, or property without due process of law”), see Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”); Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (quoting Greenholz v. Inmates, 442 U.S. 1, 18 (1979) (Powell, J concurring in part, dissenting in part) (“Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”)); Ingraham v. Wright, 430 U.S. 651, 673-674 (1977) (“While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment.”).

On a similar liberty in English law, see Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley; ‘The right to one’s person may be said to be a right of complete immunity: to be let alone,’” quoting Thomas M. Cooley, A Treatise on the Law of Torts, 29 (2nd ed. Chicago: Callghan & Co. 1888)) (quoted by Terry v. Ohio, 392 U.S. 1, 9 (1968); Cruzan v. Mo. Dep’t of Health, 497 U.S. 261, 269 (1990)).

"Leviathan": Descartes and the Equality of Human Reason

Hobbes begins his treatment on the state of nature with this observation:

“Nature hath made men so equal, in the faculties of body, and mind; as that though there be found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man and man, is not so considerable, as that one man can thereupon claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the fame danger with himself. And as to the faculties of the mind, (setting aside the arts grounded upon words, and especially that skill of proceeding upon general, and infallible rules, called Science; which very few have, and but in few things; as being not a native faculty, born with us; nor attained, (as Prudence,) while we look after somewhat else,) I find yet a greater equality amongst men, than that of strength. For Prudence, is but Experience; which equal time, equally bestows on all men, in those things they equally apply themselves unto. That which may perhaps make such equality incredible, is but a vain conceit of ones own wisdom, which almost all men think they have in a greater degree, than the Vulgar; that is, than all men but themselves, and a few others, whom by Fame, or for concurring with themselves, they approve. For such is the nature of men, that howsoever they may acknowledge many others to be more witty, or more eloquent, or more learned; Yet they will hardly believe there be many so wife as themselves: For they fee their own wit at hand, and other mens at a distance. But this proveth rather that men are in that point equal, than unequal. For there is not ordinarily a greater sign of the equal distribution of any thing, than that every man is contented with his share.” Leviathan, ch. 8, at 60-61 (rendered from old to modern English).

In his Discourse on Method 14-years earlier, Descartes makes by and large the same observation:

"Good sense is, of all things among men, the most equally distributed; for everyone thinks himself so abundantly provided with it, those those even who are the most difficult to satisfy in everything else, do not usually desire a larger measure of this quality than they already possess. And in this it is not likely that all are mistaken: the conviction is rather to be held as testifying that the power of judging aright and of distinguishing Truth from Error, which is properly called Good Sense or Reason, is by nature equal in all men...." Rene Descartes, Discourse on Method, 1 (John Veitch trans. Chicago: Open Court Publishing Co. 1910) (1637).

"Leviathan": Faulty Premises

It's funny to see how the progress of science and human understanding has undermined the observations of the old philosophers—and, thus, the conclusions they built on those premises—particularly their observations on the differences between humans and other animals.

In the Politics, bk. 1, pt. 2, Aristotle concludes that "man is more of a political [i.e., social] animal" than other social, animals, like bees, and the only being capable of creating a government. Hobbes concludes that social animals, again using bees as an example, don't need a government.

In part, these conclusions are built on their observation that animals don't have the ability to communicate anything other than to express pleasure or pain: they don't have words or speech. Aristotle, supra ("Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech. And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust."); Hobbes, ch. 17, at 83 ("though they have some use of voice, in making know to one another their desires and other affects; yet they want that art of words, by which some men can represent to others that which is good in the likeness or evil"). Of course, this observation is false, as we know today that bees communicate with each other. They just don't do it through speech; they do it through pheromones.

They both also observe that other social animals, though they are social, lack a moral sense of right and wrong. Artistotle, supra ("it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like"); Hobbes, ch. 17, at 83 (calling social animals other than humans "irrational creatures [that] cannot distinguish between injury and damage"). Oliver Wendell Holmes disagrees. See Oliver Wendell Holmes, The Common Law, 3 (Boston: Little, Brown & Co 1881) ("[E]ven a dog distinguishes between being stumbled over and being kicked.").

"Leviathan": Political Animals

Hobbes makes reference to Aristotle's description of man as "political animals." See Leviathan, ch. 17, at 86. Aristotle's treatment on the subject is found in The Politics, bk. 1, pt. 2.

Blogging Thomas Hobbes's Leviathan

I'm reading Thomas Hobbes, Leviathan (London: Green Dragon 1651) for the first time, but only the material relevant to the social contract theory, which holds that the relationship between society and its members is one of contract. I'm going to blog concurring and dissenting authorities on particular points as they arise.