Notes

Says Christopher Tasy:

[I]f you wish to take an opposing view of religion—specifically Catholicism—that’s your privilege. However, when you do so, please use the facts in context and don’t simply say, “The pope has no right to tell a woman what to do with her body” without putting the discussion points in proper context. It’s usually those who don’t understand spirituality and obedience; or one who has a particular ax to grind, who rail the most against Catholicism.

He was writing in response to my comment:

[W]hat, exactly, is your gripe with how others assess religion, religious beliefs, and the people who hold those beliefs? Are you saying that nonreligious critics are simply wrong about the facts upon which they base their rejection and criticism? That they are willfully ignorant of the facts? That they are incapable of ascertaining the facts?

In that particular discussion, I didn’t say anything about the “right” of the pope to “tell a woman what to do with her body,” so I’m not sure where he picked that up, but Tasy does evoke some interesting questions: Does the pope have such a “right”? How would understanding “spirituality and obedience” inform the answer to that question? And does that question have anything to do with opposing religion in general, or even Catholicism in particular?

The Stanford Encyclopedia of Philosophy has a pretty good definition of “rights”:

Rights are entitlements (not) to perform certain actions or be in certain states, or entitlements that others (not) perform certain actions or be in certain states.

You can take a broad definition like that and apply it across lots of contexts. For example, the “right of free speech” in the United States is an entitlement to all citizens that the government not abridge certain speech unless it has a good enough reason to do so. (Depending on the type of speech, the government justification for abridgment must be more or less compelling, but never irrational.) Or one party to a private contract may have a right to receive payment from the other party to that contract, in exchange for goods delivered or services rendered, which can be expressed either as an entitlement that the other party perform the action of paying, or an entitlement to commence a lawsuit to compel the other party to pay. Many people also believe that everyone has a “natural right” to things like “life, liberty, and the pursuit of happiness.”

The first kind of right above is a “constitutional right” protecting citizens from their government, created in the Constitution. The second kind is a “contract right,” created when two parties mutually agree to be bound. The third kind is a “natural right,” arising from the simple fact of being human, and identified according to a theory that human beings should not be the means to others’ ends.

In the context of the pope “tell[ing] a woman what to do with her body,” what is the “right” and where would it come from? Tasy suggests that a person must understand “spirituality and obedience” before answering those questions and he is probably correct. First, here is an example: Even though I am not a woman, the pope has absolutely no right to tell me what to do, with my body or otherwise, because I am not a practitioner of his religion or a citizen of Vatican City. (Some Catholics may even agree that the pope has no “right” to tell them what to do even though they are practitioners, based on their own understanding of how the Roman Catholic Church works internally. But that is not the point of my example; if the pope has any “right” to tell anyone what to do, it certainly does not extend to people who are not members of his religion or citizens of Vatican City, of which he is head of state.)

But a woman who, for “spiritual” reasons, practices obedience to the pope, may, by practicing the religion in accordance with her beliefs, effectively “grant” the pope a “right” to tell her what to do, with her body or otherwise. The quotation marks in the previous sentence should be explained: First, to the extent that the word “spiritual” may refer to a supernatural realm or entities inhabiting one, I doubt its meaning. Second, as I understand the “spirituality and obedience” concept raised by Tasy, practitioners who believe themselves bound to follow the instructions of the pope do not really grant him the right to do so, in the sense that such authority is a separable part of the practice that could be granted or revoked, in their perspective. Third, I remain skeptical that people who are obedient to the pope are so because he has a right to tell them what to do.

Even so, I still agree with the statement (which Tasy presented to me, not I to him) that “[t]he pope has no right to tell a woman what to do with her body.” He himself has decontextualized the statement by presenting it that way. Who is “a woman”? Any woman? Women are not subject to the pope simply by virtue of their being women and his being the pope. They are subject to him only by virtue of their “spirituality and obedience” to him, as Tasy suggests. Moreover, even when they do become subject to him, it is not by, for example, a constitutional, contractual, or natural right. Rather, it is by submission to a whole package of religious tenets—including the acceptance of a theological program and committed practice of the rituals of the church. And I would argue that they have something like a natural right, as well as a constitutional right in the United States, to reject that package unilaterally, without permission of the pope, and put themselves in a position identical to mine: absolutely not subject to the desires, wishes, pronouncements, or exhortations of the pope.

But what does any of this tell us about “tak[ing] an opposing view of religion”? Nothing. While I have expressed myself in a way that I hope is clear, I have used a lot of words and highfalutin concepts to say something that is wholly unremarkable, even tautological: Roman Catholic women who believe they are bound by what the pope says are bound by what the pope says—which is to say their behaviors are consistent with their beliefs—or they are hypocrites. Or, even more simply and broadly, religious people are religious people only so long as they have religious beliefs.

The problem is that Tasy either misunderstands the critics of his religion, or he has never encountered criticism that was thought out carefully. People who criticize what the pope says about abortion or birth control are not criticizing his authority to believers or his “right” to “tell them what to do”. Instead, they are criticizing what they see as the detrimental real-world effects on the women who submit to the beliefs and practices that require them to order their reproductive affairs as the pope urges. In other words, no matter the “spiritual” benefits to Roman Catholic women for avoiding hypocrisy, the immanent adverse effects created by the behaviors compelled by that non-hypocrisy outweigh the benefits.

While Tasy and other advocates of religion or Roman Catholicism are free to assert that “spiritual” benefits will always outweigh immanent adverse effects, their critics’ perception that the women allegedly accruing those “spiritual” benefits still experience needless suffering that could be avoided but for their practice of religion remains untouched by the defense that the behaviors of these women are driven by “spirituality and obedience.” When critics of religion observe that women could achieve a higher level of education, obtain a better standard of living, and tip the scales against the power monopolized by often-abusive men by using birth control and having the ability to safely abort unwanted pregnancies, how does it address their concern to say that these women are motivated to do otherwise by “spirituality and obedience”? Rather, the implication of that response is that “spirituality and obedience” necessarily relegate women to the whims of reproduction and the desire of men. The problem, from the outsider perspective, is not that these women simply need to say, “The pope has no right to tell me what to do with my body!” The problem is that the very practice of the religion itself—at least as Tasy appears to conceive it—forecloses against the possibility of their even considering such a proposition.

All of which is simply a roundabout way of pointing out that critics of religion are not ignoring the problem of “spirituality and obedience,” but are outraged that “spirituality and obedience,” despite their emotional appeal, are so effective at diverting the care and attention of religious practitioners away from tangible and immediate problems and toward intangible and other-worldly concerns. That is not to say, however, that “spirituality and obedience” necessarily have a diversionary effect. Plenty of people have construed “spirituality and obedience” to mean giving attention to every moment of life and being itself. The problem is that religion, especially some forms of it, like Roman Catholicism as practiced by much of its laity, often does have a diversionary effect, and people like Tasy seem to be oblivious to that problem, and sometimes even gleeful in promoting the diversionary effect. Moreover, as many of us have discovered, paying attention to daily problems, practicing care and compassion, and cultivating an ethical lifestyle does not require religious beliefs. So why risk the adverse consequences of the diversionary effect at all? Why not, as many critics of religion do, advocate reducing the prevalence of religion, or doing away with it entirely?

Even though I agree that, for the sake of polite and productive discourse on the matter, critics of religion should do a much better job of understanding religion from the perspective of their opponents, I disagree with Tasy that critics of religion are removing the discussion from its proper context. And while I would like to give him the benefit of the doubt, I suspect that what he really means by “proper context” is that he would prefer to have complete control of how all terms of the conversation are defined. The specially defined terms and internal structure of Roman Catholicism are its strong suit—for insiders. But the persistence of Catholic apologists and polemicists, like Tasy, on using their own terms and definitions while refusing to recognize other perspectives is exactly what they accuse their critics of doing.

The fact that we outsiders fail to reach the same conclusions about, say, “spirituality and obedience” and their consequences, does not mean that we fail to understand those things or account for them in the context of the discussion. To claim otherwise is no different than saying, “You are not allowed to criticize the Catholic church until you become a member,” which in turn is only a veiled way of saying, “I have no way to convince you that Catholicism is right, so I refuse to talk to you until you convince yourself that it is right.” And that is no argument at all.

Even though Judge Sonia Sotomayor has already been confirmed to the United States Supreme Court, and the furor over her “wise Latina” comment, and over the President’s “empathy” comment, appears to have died down, I am still bothered by the popularity of the idea that judges are just supposed to be unfeeling logic machines, applying the law without reference to their personal history and the understanding of human nature that they have developed through their own experience. While reading David Hume’s An Enquiry Concerning Human Understanding this weekend, it occurred to me that the empiricist underpinnings of our evidential rules provide further support for the idea that neither Judge Sotomayor nor President Obama were out of line for saying what they did.

David Hume suggested that “[a]ll the objects of human reason or enquiry may naturally be divided into two kinds, to wit, Relations of Ideas and Matters of Fact.” (An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 1.) The difference between the two is that ideas can be negated while facts cannot be. For example, if I say that a triangle has three sides, you cannot negate that statement by saying that a triangle has some other number of sides. A triangle is defined by the number of sides it has, so it defies logic to say that a triangle has four sides; then you are talking about a quadrilateral. On the other hand, said Hume, if I say, “The sun will rise tomorrow,” then you can say the opposite, without doing violence to logic, that “The sun will not rise tomorrow.” There you are not dealing with logical propositions, but facts—and, try as you might, you will never be able to prove that the sun will rise tomorrow with the same level of certainty with which you can assert that a triangle has three sides; you can only show the extremely high probability that the sun will rise tomorrow.

Except for lawyers, most people probably couldn’t care less about the distinction between “ideas” and “facts.” And lawyers care because they have to worry about evidence. We have to present evidence to people—judges or juries, conveniently lumped together by the term “triers of fact”—who did not experience what the evidence is intended to prove, and we have to convince those triers of fact that something happened. We have to develop in them an individual sense of assurance that the events we claim to have occurred really did occur. The sense of assurance must be strong enough that those triers of fact will make an important decision about the consequences of those events: someone will pay a substantial sum of money to someone else, someone will be compelled to commit certain acts, someone will be imprisoned, and so on.

So, as Hume put it, “It may, therefore, be a subject worthy of curiosity, to enquire what is the nature of that evidence, which assures us of any real existence and matter of fact, beyond the present testimony of our senses, or the records of our memory.” (An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 3.) Here is how he starts that enquiry:

All reasonings concerning matter of fact seem to be founded on the relation of Cause and Effect. By means of that relation alone we can go beyond the evidence of our memory and senses. If you were to ask a man, why he believes any matter of fact, which is absent; for instance, that his friend is in the country, or in France; he would give you a reason and this reason would be some other fact; as a letter received from him, or the knowledge of his former resolutions and promises. A man, finding a watch or any other machine in a desert island, would conclude, that there had once been men in that island. All our reasonings concerning fact are of the same nature. And here it is constantly supposed, that there is a connexion between the present fact and that which is inferred from it. Were there nothing to bind them together, the inference would be entirely precarious. The hearing of an articulate voice and rational discourse in the dark assures us of the presence of some person: Why? Because these are the effects of the human make and fabric, and closely connected with it. If we anatomize all the other reasonings of this nature, we shall find, that they are founded on the relation of cause and effect, and that this relation is either near or remote, direct or collateral. Heat and light are collateral effects of fire, and the one effect may justly be inferred from the other.

If we would satisfy ourselves, therefore, concerning the nature of that evidence, which assures us of matters of fact, we must enquire how we arrive at the knowledge of cause and effect.

(An Enquiry Concerning Human Understanding, § 4, Part 1, ¶¶ 4-5.)

If Hume’s example of evidence that a “friend is in the country, or in France”—such as a letter “or the knowledge of his former resolutions and promises”—sounds familiar, then you are probably a lawyer or a law student who has read the case of Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892). That’s the case where Mrs. Hillmon sought payment on Mr. Hillmon’s life insurance policies and the pivotal issue was whether a body found at a place called Crooked Creek in Colorado was actually that of Mr. Hillmon. The two insurance companies who had issued the policies did not want to pay out—because their business model is to take in as many premiums as possible and pay for the fewest possible number of claims—so they argued that the body actually belonged to someone named Walters. In support of that defense, they tried to introduce into evidence some letters that Walters had written to his sister and his fiancée stating his intention to leave Wichita and go to Colorado with Mr. Hillmon during the period when the body was found. But the trial court did not allow them to enter those letters into evidence: they were hearsay, and therefore not sufficiently reliable.

The insurance companies tried to argue that the letters should come into evidence under an exception to the hearsay rule, as records made in the ordinary course of business. But, as the Supreme Court pointed out, “they were clearly not such.” (Hillmon, 145 U.S. at 295.) Even so, the Court found a way to let the letters in:

A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.

The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be. . . .

The letters in question were competent, not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention.

(Hillmon, 145 U.S. at 295.) In other words, Walters’ expression of intention as manifested in the letters, while still hearsay—that is, a statement made out of court, offered in court to prove the content of the statement—should be admitted as an exception because they are reliable evidence not that Walters actually went to Colorado with Mr. Hillmon, but that he intended to go there. There is no reason of logic why a letter to a loved one stating an intention to do something should be reliable evidence of what the writer intended to do. One might suppose, as the Court did, that “while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander’s recollection of what he then said, and is less trustworthy than letters written by hime at the very time and under circumstances precluding a suspicion of misrepresentation.”

That is, the insurance companies were doing exactly what Hume suggested: trying to explain a fact by cause and effect. The letters were offered as evidence as an effect of a cause: Walters’ intention to go to Colorado with Mr. Hillmon; he wrote the letters because he intended to go to Colorado. And they were trying to prove the intention as a cause of another effect: Walters’ presence in Colorado when the body was found. From this, along with other evidence, the trier of fact was supposed to draw the inference that the body could have belonged to Walters, meaning that Mr. Hillmon was still alive and the claim on his life insurance should not be paid out.

But how is a person supposed to make sense of those “causes” and “effects”? The Court also quoted from a New Jersey case, in which, the day before he was murdered, a man wrote a letter to his wife stating that he would be traveling with the murderer to the place where the murder occurred. The court admitted the letter into evidence:

In the ordinary course of things, it was the usual information that a man about leaving home would communicate, for the convenience of his family, the information of his friends, or the regulation of his business. At the time it was given, such declarations could, in the nature of things, mean harm to no one; he who uttered them was bent on no expedition of mischief or wrong, and the attitude of affairs at the time entirely explodes the idea that such utterances were intended to serve any purpose but that for which they were obviously designed.

(Hillmon, 145 U.S. at 299, quoting Hunter v. State, 40 N.J.Law 495.)

The judges in Hillmon and Hunter were not making logical syllogisms to support their holdings. The rationales in their opinions are not like geometric proofs, but rooted in their experience. “Of course these letters are reliable evidence of their writers’ intentions,” the judges are saying. “Why would somebody who later turns up dead in a place that’s far from home have written a letter to lie about his intention to travel there?” But, just as Hume suggested that there is nothing illogical in asserting that the sun will not rise tomorrow, there is nothing illogical in asserting that such letters should not be considered reliable evidence of anything. Could you make a rationally appealing argument that what has come to be called “the Hillmon doctrine” is misguided? Sure. You could even make your argument by relying on your experience with people, many of whom frequently make statements of intention that they fail follow through to action.

To explain our use of cause and effect, Hume proposed that we can only discern a relation between cause and effect because we repeatedly observe certain things occurring together:

I shall venture to affirm, as a general proposition, which admits of no exception, that the knowledge of this relation is not, in any instance, attained by reasonings a priori; but arises entirely from experience, when we find, that any particular objects are constantly conjoined with each other. Let an object be presented to a man of ever so strong natural reason and abilities; if that object be entirely new to him, he will not be able, by the most accurate examination of its sensible qualities, to discover any of its causes or effects. Adam, though his rational faculties be supposed, at the very first, entirely perfect, could not have inferred from the fluidity and transparency of water, that it would suffocate him, or from the light and warmth of fire, that it would consume him. No object ever discovers, by the qualities which appear to the senses, either the causes, which produced it, or the effects, which will arise from it; nor can our reason, unassisted by experience, ever draw any inference concerning real existence and matter of fact.

(An Enquiry Concerning Human Understanding, § 4, Part 1, ¶ 6.) Hume’s “Adam” argument is just the 17th century version of the “alien observer” argument: If aliens came to earth with no knowledge or experience of anything on our planet, would they conclude, for example, that Walters’ letters were reliable evidence of his intention to travel to Colorado with Mr. Hillmon? How would they have any means to make a decision either way? What do they know about human culture, or how people communicate with their loved ones before traveling? If the human judges who decided the Hillmon case had tried to put aside their humanity, their experience, even their empathy—not just for the parties, but for Walters, too—how would they have come to a decision? Left with only logic and rules previously stated in the English language—undoubtedly a human language, which makes it notoriously imprecise—how would they have done anything but slip into decisional paralysis?

Judges need their human experience to make decisions. Any lawyer who has appeared before more than one judge knows that the human experience of those judges injects a small amount of disorder and unpredictability into the law, as manifested in their decisions. But that human experience also prevents those judges from failing to make decisions for inability to get a handle on the questions before them.

So what did Judge Sotomayor mean by her infamous “wise Latina” comment? Putting aside the fact that conservative Justice Clarence Thomas made a similar statement without triggering outrage, and the fact that Sotomayor was probably just trying to encourage the other members of her demographic, who are severely underrepresented on the bench, it seems clear that, while she may have chosen her exact words poorly, she expressed a difficult truth about the law. Knowing, as we do, that judges’ humanity is necessary, unavoidable, and a force for disorder and unpredictability, and knowing that we live in a society with many people of extraordinarily diverse experiences, all of whom turn to the courts to resolve their disputes, why wouldn’t we try to temper the bench by populating it with judges whose human experiences are just as diverse as the litigants who come before them?

Judges are forced to make important decisions every day. Even when it seems like they can make those decisions by the application of settled law, they have to rely on their human experience. I recently appeared before a judge who made a decision in my favor by pulling out her code book, reading from a statute that appeared to compel a certain outcome, and telling the other attorney that she had no discretion to do otherwise. To the untrained eye, this judge was acting as a decision-machine, applying the law without recourse to experience or empathy. Experts might see if differently. Since that decision, the other attorney has twice observed that the judge was wrong about the law, and he is probably right. But we had a unique situation, where the opposite decision was probably going to be a greater hassle and expense for everyone involved. How could the judge have known that, except for her experience of humanity and her empathy with the people involved—which clearly encompassed both parties and their attorneys? You might say her decision was wrong on the law, but right on the facts—and just about every time a judge faces a potential split like that, she is probably going to choose the outcome that is right on the facts. In previous essays, I have called that justice.

Am I perceiving that particular decision by that particular judge on that particular day in a favorable light because it benefitted my client and me? Maybe. But I agree with the other attorney that the judge was probably wrong on the law. Still, there are no objectively correct decisions in court. One side has a belief about what is correct, the other side often has a contrary belief, and we mediate between those beliefs by arguing them to a judge. The judge is human and thus not capable of objectivity, but her position as a third party, not involved in the dispute, creates what might be called relative objectivity. Neither party to a legal dispute has a fully objective perspective, but the judge, by seeing both sides without having the obligation to align her interests with one or the other—as the lawyers representing the parties do—has more objectivity than the parties or their attorneys. The fact that most judges are physically elevated above the parties and their attorneys in the courtroom illustrates that principle: the judge may have the benefit of a bird’s-eye-view, but she is not omniscient.

Aside from all of this about humanity and objectivity, there are good, practical reasons for lawyers to read things like the philosophy of David Hume. It helps us think about and understand the anatomy of persuasion by evidence. But even though most people are not remotely interested in the difference between “Relations of Ideas” and “Matters of Fact,” the politics of judging reveals that they should be. If we are going to be a society ruled by law, and if we are going to invest judges with the authority to make binding decisions and to keep the law on course, then we ought to be thinking about how the system works.

This announcement appeared on page 10 of the Spotlight section of The Fresno Bee on Sunday, August 23, 2009:

For those keeping score, like the ceramic pig that is holding a little whiteboard on the hutch in our dining area, the wedding 48 days away.

The other day I encountered an instance of one of those arguments that religious people think is supposed to put atheists in their place. It goes something like this:

Atheists make the following complaint: “Practitioners of Religion X, while they have a perfectly good skeptical outlook on secular matters, such as whether to believe a given urban legend, are inconsistent because they fail to apply the same skepticism to the claims of Religion X.” But their complaint rings hollow because it comes from a philosophical position, accepted “on faith” just as practitioners of Religion X accept its tenets “on faith,” that knowledge is restricted to things that can be proved or disproved by science.

The first and most obvious problem with that argument is that it completely sidesteps the real question: How can anyone ever know when, if ever, skepticism is warranted? The sidestep is accomplished with a veiled pot-and-kettle argument: “You believe things ‘on faith’ just the same as we do, so you have no room to criticize us.” But while it may be silly for the pot to call the kettle black, it certainly is not silly for the pot to wonder what it means to be black, whether it and the kettle are actually black at all, and, if they are, whether it is possible to be some other color. Or, coming back to the terms of the argument, what does it mean to accept things ‘on faith,’ do people actually do it, and, if they do, is it possible to do otherwise? Unless the defender of Religion X, or religion in general, is saying that skepticism is never warranted—and I have never heard anyone say that—then simply defining the outsider’s position by the insider’s terms does nothing to answer the question of whether and when skepticism can be properly applied to religion, and how practitioners can or should respond to the onslaught of skepticism. In short, the argument above is wholly nonresponsive.

The less obvious, but more important, problem with the argument above is that it demonstrates a fundamental misunderstanding—and misrepresentation—of the outsider’s critique of Religion X, and religion in general.

I should back up a little before going forward. I am using two words: skeptic and outsider. An outsider is simply not a practitioner of Religion X. He or she may be a practitioner of Religion Y, Religion Z, or no religion at all. Anybody who is not a practitioner of Religion X is an outsider. Most people do not need to explain why they are not a practitioner of a certain religion. It would be strange if, when encountering someone who identified herself as a Christian, we next asked, “Why are you not a Muslim? Why are you not a Buddhist? Why are you not a Zoroastrian?” and so on down the list. Practitioners of Religion X generally need very little reason why they are practitioners. But practitioners of no religion at all find themselves in the unenviable position of frequently having to do the equivalent of what we decline to require of the hypothetical Christian above: explain why we are not practitioners of any religion at all—which means we must either have specific answers for every possible religion, which would be absurd, or we must have an answer that is generally applicable to all religions. Skepticism, in some form, typically comprises the bulk of that answer.

But skepticism is not science; it is only an element of science. Science includes a bunch of other techniques designed to help a skeptical investigator amass factual and predictive information about the world. Science is a technology—a tool to extend the reach of humanity. Science is external, something that requires multiple observers (or at least a single observer, plus a means to record data, plus repetition of observation). But skepticism is internal. Skepticism is the part of your mind that says, “I’m not sure I believe what you’re saying.” This comes before “philosophy” and “epistemology.” Nobody has to flesh out a theory of knowledge before they can experience doubt about the truth of a proposition. People understand “truth” and “lies” without worrying about whether they can trust their sense. Even Rene Descartes, who famously tried to build a system of philosophy by erasing all of his knowledge except for a single, foundational proposition—I think, therefore I exist—could not escape the fact that even his foundational proposition rested on the even more fundamental human recognition that some things are true and others are false. Regardless of your philosophy or your theory of knowledge or your sophisticated understanding of epistemology, you cannot deny the experience of suspecting that something your neighbor is telling you may not be true.

Before I go further, there is another basic human drive that lurks with skepticism beneath everything else: our desire to exert control, attain stability, increase predictability, order our experience, and alleviate the suffering that comes from disorder, unpredictability, instability, and our lack of control. People have always wanted ways to make sure they would find enough food for the next meal, get enough rain for their crops, ensure the survival of their children, and protect themselves from the powerful, destructive, and capricious forces of nature. So people have devised lots of different ways to satisfy that their need for control, stability, predictability, and order.

No one should be surprised that, early on, people had the idea to try and communicate with the natural forces that gave them such grief. Rituals, sacrifices, prayers, and magical techniques make a lot of sense when you lack the resources to engage in systematic experimentation. Try something, try anything, be creative. Something might work.

But there is skepticism. Does this ritual really work? Can I believe the holy man when he tells me that I need to perform certain acts in order to obtain the outcome I desire? Can I believe him when he says that, even though I performed those acts, I did not obtain the outcome I desired because the forces I tried to communicate with had different ideas for what should happen? For vast stretches of human existence, people had no better way to satisfy their need to exert control, attain stability, increase predictability, and order their experience. But skepticism and doubt were still there. You can even find them in religious texts, some of the most familiar ones being the book of Job and many of the Psalms.

People have always been dissatisfied and they have always questioned things. Religion has been the traditional means of seeking satisfaction, while science is the most robust method for questioning things that people have ever devised. People have also used science to amass an enormous amount of true and predictive information in a way that provides enormous satisfaction to people who doubt. The information that science has squeezed out of the world, organized into so vast and so consistent a system is relatively easy to explore and does an excellent job of withstanding rigorous skeptical scrutiny—in a way that religions fail to do.

That people who reject religion are so satisfied by the findings of science is not evidence that they have taken a flying leap of faith from one set of prior assumptions to another, or from one epistemological philosophy to another. For those people, the problem with religion is not primarily that it fails to withstand the standards of science—even though it does not—but that it fails to withstand their skepticism in a way that science does not, and spectacularly so. Religion, for these people, is like the shady neighbor who, while he may not have done anything wrong, always seems sketchy and doubtful, not to be trusted, while science is like the trustworthy person who always seems honest, forthright, and able to look you in the eye while answering your questions, even when the answers are not what you wanted. This is not a question of philosophical epistemology, but what convinces people and gains their trust.

This is part of what I meant when I suggested the a few weeks ago that atheists need to move beyond atheism:

Becoming a not-atheist also does not mean that you stop criticizing the foolishness of theism, religion, faith, and all of that. It only changes your conceptual center, the place from which you exercise your skepticism, perform your analysis, and issue your criticism. Foolishness is still foolishness, but it stands or falls on its own, not because it compares unfavorably to something else. Religion is not bad because irreligion is better; if religion is bad, then it is bad for its own concrete reasons, which make sense without regard to your personal views about faith or belief or supernatural entities.

If religion is bad, it is not because its “truth claims” are not susceptible to scientific investigation. Rather, if religion is bad, it is because religion, while once a satisfactory means of ordering experience, no longer convinces people—who are simply humans being the same doubting, skeptical people they have always been. Those people are not theoretically-souped-up, epistemologically-informed philosophers with a new key to reality. Nor are they theoretically-ignorant, epistemologically-challenged nitwits taking it “on faith” that their skepticism is justified. They are just people who are not convinced by religion, in large part because most religions are brashly inconsistent, dismal failures at actually improving people’s lives, and astoundingly intolerant of naked skepticism. But the same people are convinced by science, which is about as opposite as you can get from those three failures.

A lot of atheists can tell stories about how they left religion. Many of them can describe an experience of having questions or doubts, taking them to an expert practitioner of the religion—someone like a priest or a pastor—and receiving little except the exhortation to put their doubts or questions aside: religion will not address these things head-on, in open daylight. Many of the same atheists can also tell about taking doubts and questions to irreligious authorities, like expert practitioners of science, and receiving answers like, “We don’t know, but those are good questions, and you should be asking them.” The willingness of practitioners of the scientific method to address questions in the open, with honesty and candor, is like a long-awaited breath of fresh air to most new or soon-to-be atheists.

And, despite the religious critics who scoff that atheists are ignoring mystery and wonder, the ability to dive deeply into the unknown, into doubts and questions, to say, “We know this with great assurance, but that is still unknown and may stay that way forever,” provides enormously satisfying experiences of mystery and wonder. Religious mystery feels trumped up to many people, like a peepshow where the window is kept intentionally dirty so that no one can ever see clearly. Mystery away from religion is like breaking the glass and seeing that not only is the mystery still there, but it is even more enthralling than before without a filthy, smudged pane obscuring it. And the skeptic says, “I doubted before, and I still doubt, but now I trust both the answers and the absence of answers.”

I picked up Steven Pinker‘s book How the Mind Works this morning. On page 13, I encountered this:

A bachelor, of course, is simply an adult human male who has never been married. But now imagine that a friend asks you to invite some bachelors to her party. What would happen if you used the definition to decide which of the following people to invite?

Arthur has been living happily with Alice for the last five years. They have a two-year-old daughter and have never officially married.

Bruce was going to be drafted, so he arranged with his friend Barbara to have a justice of the peace marry them so he would be exempt. They have never lived together. He dates a number of women, and plans to have the marriage annulled as soon as he finds someone he wants to marry.

Charlie is 17 years old. He lives at home with his parents and is in high school.

David is 17 years old. He left home at 13, started a small business, and is now a successful young entrepreneur leading a playboy’s lifestyle in his penthouse apartment.

Eli and Edgar are homosexual lovers who have been living together for many years.

Faisal is allowed by the law of his native Abu Dhabi to have three wives. He currently has two and is interested in meeting another potential fiancée.

Father Gregory is the bishop of the Catholic cathedral at Groton upon Thames.

The list, which comes from the computer scientist Terry Winograd, shows that the straightforward definition of “bachelor” does not capture our intuitions about who fits the category.

Knowing who is a bachelor is just common sense, but there’s nothing common about common sense. Somehow it must find its way into a human . . . brain. And common sense is not simply an almanac about life that can be dictated by a teacher or downloaded like an enormous database. No database could list all the facts we tacitly know, and no one ever taught them to us.

The context of that passage is Pinker’s discussion of how extraordinary is the human mind, but it reminded me immediately of one of the fundamental problems of lawyering. And it’s a problem not just in how we go about our day-to-day practice—Does this recurrent benefit count as “income” for the purpose of the definition in that statute? Are those actions “attempted murder” under the penal code?—but a problem in how lawyers are often perceived: as disingenuous sophists and destroyers of meaning. The problem is relating an abstract definition, often called a rule, to a specific set of facts, in a process called application.

Law students are familiar with application as the A in the common analytical pattern of IRAC: Issue, Rule, Application, Conclusion. They are also familiar with the idea that there is no “correct” answer to any legal question, at least in the sense that there is often no application of a rule that is so blindingly clear and obvious as to be unavoidable. No matter the conclusion, one can almost always make a plausible argument for its opposite.

We live in a world where that is possible because, as Pinker demonstrates, definitions or rules (e.g., a bachelor is an adult human male who has never been married) almost never have the scope they need to be easily and unambiguously applied to all possible situations. I would go so far as to say that definitions or rules are useful precisely because they do not encompass every possibility. Trying to define words and concepts coextensively with their actual use in the wild would make discrete words and concepts almost useless in many instances because, as lawyers familiar with the problems of statutory construction understand, you will never discover all the problems with your definition—until it becomes completely obsolete and is replaced by another.

Rules and definitions and the meanings of words are more like clouds that drift across a continuum possibilities, shadowing out a useful territory only temporarily. They provide one of the tools we use to economize decision-making. In the example above, from Pinker’s book and Winograd’s list, no one would bother to define all the exceptions to the standard definition of a bachelor in making that list of invitees. And few would take the time to rationalize from what they know of practice, through “common sense,” to the outcome of who is invited to the party. The real meaning of “bachelor” is a matter of practice; the word and its definition are just a shorthand that will never include the whole realm of possibilities.

In law, however, we often pretend, for the sake of predictability, that words and their definitions are the be-all, end-all arbiters of meaning. Lawyers find all the facets of ambiguity in the language spilled from the frenzied pens of power-grabbing legislators and judges employ “canons of construction,” like the useful fiction of “the plain meaning of the statute,” to reduce the ambiguity. (Then, when they come down on the side a particular legislator does not approve, they are reviled as “activist” judges. Some people would “solve” this problem by insisting that judges facing genuine ambiguity—and how they would know that is hard to say—should simply decline to make a decision and send the disputed language back to the legislature. But who decides when the legislators have succeeded?)

There is probably no way to prevent people from seeing lawyers as insufferable sophists because most people are not interested in recognizing that the world is a cloudy, slippery, indistinct place—especially where humans have built cultures and social forms and morals and rules—and most of what we think we know is only shorthand for all the contradictory things we actually do.

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