Non-Liquet is Resting....

Non-Liquet has gone into hibernation. Westminster University School of Law has moved from here to a new main blog at Advanced Legal Studies @ Westminster. Please visit.

A Critique of Pure Luck: Meno & Posterior Analytics

In the Meno, Plato shows how knowledge of the Pythagorean theorem is inherent in an uneducated boy. If this is true, then either Socrates knows how to extract external truths or we are witness to trickery. If the former then Socrates is one of the greatest educators ever; if the latter then he is just another fraudster. If the former then what we need to know is somehow embedded within and the training we need is how Socrates' method works. If the latter then we can dismiss the Socratic method. If the former then Socrates embodies the genuine philosopher and upholds the philosophical ideal in real life. But if the latter then philosophy is louche--a cocktail party joke at best! (See John Flood's "For Joe").

Aristotle was so bothered by the Meno, not sensing Socrates' joke so to speak, that he wrote the Posterior Analytics (PA) trying to explain how "all teaching and all intellectual learning come about from already existing knowledge." [71a, 1] The questions arising from the Meno are interesting (e.g. how should we teach? how should we learn?) but Aristotle's answer in the PA turns out for the most part about different forms of understanding the particular, and deductive demonstrations of the universal and the particular. [84b35, 85a15] In Book I of the PA, he sets out a programme for understanding a thing simply (simpliciter) as distinct from universally. What you know simpliciter is different from what you understand universally. [71a25] What the boy knows simply in the particular is, in other words, different from what one would understand universally.

Although he never really explains how the heck the boy in the Meno can "understand" or "deduce" the Pythagorean theorem, sweeping it away as some kind of con job [71a 30], he
does appear to favour a dull Occam's Razor ("demonstration through the fewer items is better, other things being equal") [86b 5]. Perhaps demonstrations of universals are the easiest types of arguments? Unlikely.

Was the boy's understanding a matter of chance?

Aristotle argues: "There is no understanding through demonstration of what holds by chance. For what holds by chance is neither necessary nor for the most part, but what comes about apart from these; and demonstration is of one or other of these. For every deduction is either through necessary or through for the most part propositions; and if the propositions are necessary, the conclusion is necessary too; and if for the most part, the conclusion too is such. Hence if what happens by chance is neither for the most part nor necesary, there will not be demonstration of it." [87b19-26]

I wonder whether the modern discourses based on uncertainty and risks such as finance, risk management and risk-based regulations are impossible to understand not because we are incapable of understanding but because we happen to describe the phenomena in terms of chance.

For Joe

Philosophical Issues of the Credit Crisis

I am amazed that the credit crisis forces us to consider some basic philosophical issues re informal fallacies, e.g.

• Kantian unprovable apriori synthetical metaphysical premises--"the world is one credit crisis";
• Ghostly deus ex machina causation--"the credit crisis has made my train late";
• Circulus in probando by filthy rich bankers-turned-unelected dictatorial ministers--"this is the only alternative (pay bankers with taxpayers' money) because I know it is worse any other way";
• dicto simpliciter--"this is a credit crisis because I say so".

C'mon.

The media's game is to get under our skin so that as Aristotle put it, "we become what we perceive." Thus, "I think therefore I am part of the credit crisis." For the media, "the credit crisis is, therefore I, the media, make money".

One way we might protect ourselves from the electronic tsunami of rumour, falsehoods, hearsay and outright frauds by the news pundits and "macro-economists" who happen to work for banks or funds is to gain a modicum of financial literacy and to focus on what might be called "a critique of pure luck".

What is financial literacy? It is basically to understand risk in its dimensions through social time and social space. When you think about it, finance as risk is extremely symmetrical. We can get into a very long and fascinating discussion here. [Beyond the basic slogans, for the social theorists, I will only point to two areas of fundamental fecundity: (1) Group Theory--as defined by the mathematical logicians of the 19th century--from Galois on through Lie, Abel, and used to re-write the physics of the 20th & 21st centuries; and (2) Category Theory--an alternative to set theory which is yet to be applied in social science and law but extremely suggestive--the world as arrows and functors.]

Another way to approach financial literacy is to simply "keep some skin in the game". I would suggest that if the maths are just too boring for you, that you can learn finance viscerally by just trading. As preparation for trading, consider some of the best traders I know are: (1) excellent surfers on real oceanic waves; or (2) shark divers. A fine trader's mentality is found in some of the highest levels of abstraction, e.g. note Pascal's God-bet before he entered enlightened quiessence and Hilbert's enlargen programme on the 10 hardest bets on research programmes in the 20th century.

What is a critique of pure luck? It is the belief that all things are alive. Lots of so-called traditional people think this is obvious--what the cultural anthropologists called "animistic". To update this "animistic urge" into the best of Western thinking and to be a bit more precise (but still unpardonably vague), all things that interact as communicating systems are Von Neumann Universal Constructors--that is, these "things" do just that (what is logically required) to replicate themselves in whatever world they find themselves. These nestled systems give the world its form. This form is not invariant. The only necessary invariant is that material of this world hasn't changed at all for billions of years. [Democritus & Leucippus, et Lecretius RIP.] Physicists tell us this--that the planet Earth is composed of the same atoms (give or take some meteroic and cometal accretions and collisions) since the very beginning over 4.5 billion years ago, and for another googleplex years, the atoms will be the same. Although we might wrongly believe that there has been "progress" since way back then. All there has been is really a "re-arrangement" of form. Socrates is even more right now--we as humans are ridiculously insignificant.

As an exercise for the Von Neumann Universal Constructor, we might consider the credit crisis as a good opportunity to think about what laws are conserved through global crisis or anticipating the dark ages (forget the Depression, that's just too small a wave to bother surfing), in case of the BIG ONE, what is the form of laws that are necessary to re-boot civilization?

Answers should be sent to the New York Times and the Financial Times.

Philosophy

Baha Mousa, Shattered Zoe

Mumbling about Baha Mousa, Giorgio Agamben, Niklas Luhmann and Gunther Teubner: Politics, Law, Zoe, Rights and Consciousness

Baha Mousa and Basra adventure mates. Nine men have been tortured, one to death. [1] Only ‘Corporal Payne’ has been condemned (court martial for war crimes) to one year imprisonment (the proceedings of the cases have been characterised by substantial lack of evidence). On July 10th, the Ministry of Defence has ‘awarded’ a £2.83m compensation. Shall a breath of relief be released, shall the event be greeted as justice for the hurt being finally made in/by Britain?

Incidentally, what a big-hearted settlement: Taxpayers pay. What is the response/ responsibility/ accountability… towards the citizens? What is a state, what is a nation? Really are the citizens ultimately the guilty? Yet guilt is not a fashionable concept. What is politics? I feel like defining power today. I define power as the possibility of getting away with it. After all, similarly thinks Agamben, about the state of exception…[2]

Thinking of Luhmann,[3] thinking of the dodgy conundrum of law (especially, the vertical law) and politics. Law generating normative expectations. Normalisation... But l’eccezione conferma la regola! The exception confirms the norm. The Ministry of Defence has admitted the ‘breach of human rights’. This formulation makes me queasy. I try to understand why. It is a sudden glance, and human rights law appears now as regulating bare life, the homines sacri. It is a paradox. Bios, political life without flesh and blood,[4] is the juridical subject, the social – and more specifically legal – communication. This occurs abstracting it from zoe, the bare life. Thence zoe is abandoned!

Thence the utmost heinous crimes (intended, unnecessary, sadistic, prolonged) are neutralised. In particular, the army systemic logic is quintessentially based on the notion of bare lives, of homines sacri, the spendibililty of life. The war (extra) territory (the no man’s land!), reminds me the theatrum politicum, the theatre of bare life staged by de Sade in the “120 Days of Sodom.” As Agamben read it, in such theatre the very physiological life of bodies appears, through sexuality, as the pure political element. The political realm par excellence emerges in the maisons. There, every citizen can publicly summon any other citizen in order to compel him to satisfy his own ‘needs’.[5]

And I also wonder about the inconsistency of rights, their changing in vertical law (constitutional law, international human rights law), horizontal law (criminal law, law of war??)…

I cannot but see (or, rather, self-observe, introspect…) a zoe in shatters!!


[1] See E.g., http://news.bbc.co.uk/1/hi/uk/6360845.stm, http://www.guardian.co.uk/uk/2008/jul/11/military.defence
[2] See E.g. Agamben, Giorgio, 1998, Homo Sacer. Sovereign Power and Bare Life, Heller-Roazen, Daniel, transl., Stanford (CA): Stanford University Press
[3] See E.g., Luhmann, Niklas, 1995, Social Systems, Stanford, CA: Stanford University Press
[4] Also cf. Gunther Teubner's account in Teubner, Gunther, 2006, “The Anonymous Matrix: Human Rights Violations by ‘Private’ Transnational Actors, 69(3) Modern Law Review, 327-346
[5] Agamben, cit., at 134-5

Pragmatism distanced from principle or disengaged politicking? An IHL enforceability conference and a judgement of the Israeli Supreme Court

On June 1, 2008 I attended an international conference under the title ‘Complimenting IHL: Exploring the need for additional norms to govern contemporary conflict situations’ organised by the Minerva Center for Human Rights of the Hebrew University of Jerusalem and the ICRC. The question at stake was whether the problems created by an archaic legislative framework of international humanitarian law called for further legislation (for the purpose of clarification) and if this indeed was the only means to achieve these objectives?

In response to the opening keynote address of the conference delivered on 1 June, 2008 by the honourable Judge Theodor Meron, Prof. Françoise Hampson spoke, amongst other things, about the role of the law in the regulation of State activities of this kind. She noted many a time that the imminent problem is not the law itself, and its conceptualisation of certain notions and rules, but rather its enforceability and thereby implementation. The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws. Why is it then that we usually resort to new legislation for solutions? Because it is easier.

Such processes that seek new legislation imply the unavoidable - they make the current laws seem futile and meaningless and belittle their importance as a whole - creating a very dangerous situation at present when new legislation has yet to be designed or even conceptualised. So, if this is our present approach to the laws of war, why should new laws be treated any differently?

Subsequent remarks implied that what needs to happen is the establishment of a truth commission or analogous impartial and independent investigatory body that would undertake to investigate the situation from a neutral position and into considerable depth, compensate the victims, and punish the culprits. The multiplying and fragmenting international judicial system of courts and tribunals is nonetheless dependent on the will of states and is subject to their availability and acceptance of not only jurisdiction but procedural terms. Such an ‘opt in’ prerequisite considerably limits the scope of their jurisdiction. There is, however, still hope for a similar criminal tribunal to those established in Rwanda (ICTR) and ex-Yugoslavia (ICTY), or the hybrid courts of Sierra Leone and Cambodia will be established in the Palestine/Yisrael region.

This equally reminds me of what Prof. Marco Sassòli has often remarked on the situation at hand (whose words I vividly recall from his lectures at the University of Geneva). In these circumstances we should be reminded that if the relevant parties (primarily the State parties involved who continue to flawedly rely on reciprocity as a grounds for legality) would comply with the legal obligations that bind them, it would make for a more solid grounds for all other construction processes, political and otherwise.

To evince the judicial practice as well as the worries of human rights practitioners in the region, the judgement of the Israeli Supreme Court in the case of HCJ 9132/07 Jaber Albasioni Ahmed and others v The Government of Israel that was handed down on 30 January 2008 is a good example to use. This was a case where 12 different petitioners, amongst them 9 organisations (one of which is the organisation I presently work with, Hamoked – Center for the defence of the individual), lodged a fundamental (as opposed to individual) petition against the policy decision of the Israeli authorities to limit the supply of gas and electricity to the Gaza strip and intensify the already traumatic humanitarian crisis.

This petition was decisively rejected (the following excerpts are a free translation from the decision which was not, and will probably never be, translated into English). As President of the HCJ Judge Beinish notes in the opening paragraph of the judgement, there is no obligation on the State of Israel to transfer an unlimited amount of electricity and gas to the Gaza Strip "in circumstances where some of these resources continue to sustain the terror organisations for the purpose of targeting Israeli civilians."

She continues, “Israel no longer has effective control of the happenings in the territory of the Gaza strip...[and] in these circumstances, there is no general obligation on the State of Israel to care for the well-being of the population of the Strip and to maintain the public order in the region under the framework of the law of occupation in international humanitarian law.” (para. 2)

The HCJ was therefore convinced that “the decrease in supply in [three out of the tens of electricity lines that supply electricity to the Gaza Strip] does not violate the humanitarian obligations that bind the State of Israel in the context of the 'armed conflict' that is ongoing between it and the Hamas group that is controlling the Gaza Strip.” (para. 18)

These assertions are of a considerably paradoxical nature. The Court never recognised the 'humanitarian legal framework' (at least not its full range of instruments) and now it refers to it in retrospect when noting that it no longer applies (when it clearly does, as the IDF still has effective control over the Strip and the life of the local population).

It should be noted that this is only one of many amongst a collection of profane judgements that misinterpret and selectively reference the very fundamental international legal frameworks that have applicability in armed conflict situations and that the State of Israel has signed and ratified.

Complimenting this case, there was a parallel petition lodged demanding explanations on the continuous pumping of gas by Israel from the seabed nearby the Gaza Strip. Israel is pumping away whilst the population of the whole Strip is suffering from a severe shortage where bakeries are being shut down and cars are running on cooking oil. This particular petition is not recalled anywhere in the press and the reminence of this major gas field discovery can only be evinced by much older news pieces from the international press announcing the joint venture and the contracting of international companies.