Sunday, January 31, 2010

More On Fish, Science and Religion


Thanks for the reply, and sorry about "orthogonal" -- it's kind of a computer nerd thing, but I couldn't resist popping it in after coming across this: That time Professor Friedman said "orthogonal." (showing that it's use extends beyond the realms of computer nerds, but maybe not quite as far as the US Supreme Court).

Re: "religion and science have some different purposes but they also have a fundamental common purpose", all I can say, finally, is that I think the last part of the sentence is wrong, at least since the epistemological shift that gave rise to science as such in the first place (i.e., differentiated it from religion); and I would urge you to just stop a moment over the first part of the same sentence and consider more carefully what those different purposes might be, and whether or not they both might be served without conflict.

Re: your account of what science involves, I don't so much find it wrong as maybe just too "commonplace". I think people like
Kuhn, Polanyi, and others would say that it's wrong in a more fundamental way, and while their critiques of the positivist accounts of science are well-taken, to my mind, I'd rather not get off on that here. For now it just seems to me that your account doesn't really say anything about the nature of the epistemic shift, or about the real way science functions in order to construct, as opposed to find, its truths. But you say that you're "missing the practical import" of that shift, and since we're talking about a purported shift toward a "radical pragmatism", its practical import should certainly be a concern. I'm afraid that such import might be a little subtle though, perhaps because the effect is so broad and deep, but I also think, for similar causes, that it's ultimately of great consequence. Here are some reasons:

1) With this shift, the notion of Truth (capital T) is dethroned, though certainly not abandoned. Empirical truth, in the first place, becomes just one kind of truth, to be distinguished at least from logical truth. In the second place, empirical truth is no longer a simple binary function, as is logical truth, but instead can have a range of values, so that assertions can be more or less true rather than flatly true or false (as illustrated by your Newtonian/Einsteinian gravity example, which I had used too). And in the third place, truth becomes not some ultimate, unreachable goal but rather a derivative of a much more graspable or practical notion of workability, albeit in a comprehensive and efficient sense. And all of that, I think, has a powerfully liberating effect on how we go about creating and working with plastic concepts in order to construct the facts, hypotheses, theories, and laws that form the body of the sciences. Which brings up --

2) "Theory", in the sense of constructed sets and structures of concepts (which themselves are made of concepts, and observational abstractions) permeates science at all levels, even what we think of as the most simple, "factual" observations. Early theories about the spontaneous generation of life, for example, arose from close (but later shown to be erroneous) observations of fairly careful experiments, and early difficulties with quantum phenomena also arose from what seemed like insuperable difficulties reconciling the assumptions (aka theories) contained in observations. Some things, of course, are better established than other things, but this simply means that there's a spectrum of acceptability for scientific concepts and conceptual structures, the division of which into "facts", "hypotheses", "theories", and "laws", is almost entirely arbitrary (Webster's notwithstanding). Another part of the epistemic shift, then, is the realization that everything, not just hypotheses and theories, but so-called facts and laws as well, is open to question, in the perpetual drive to find ever more workable theories. And that leads to --

3) Maybe the most intangible aspect of this putative shift, but one I find most significant, has to do just with its inversion of the goal of science -- if we think we're searching for a pre-existing truth, or for a representation that will match up to an external reality, then the idea that such a search is endless can be dispiriting, to say the least; and in fact, it can frequently enough lead us into the temptation to want to call a halt at some point, and say okay this much at least is the truth and we'll fight to hold on to it. On the other hand, if we think instead that we're engaged in a process of constructing ever more workable theories, then the endless nature of such a project is a feature I at least find attractive and even energizing -- and it becomes much easier to be flexible in the face of new evidence not yet assimilated into the body of science.

All of which is, admittedly, a long way from the little book review that started this, and I'm afraid I've kind of lost that thread myself. As I faintly recall, it began with the notion that the book under review itself apparently emphasized the primary nature of workability in establishing scientific truth, but I forget now how that was supposed to tie into the different roles of science and religion....

Regards in any case, and by all means reply if you have time and interest.


Larry, theories, hypotheses, scientific laws etc etc are NOT constructed. They are indeed formulated, but the slippage from 'formulated' to 'constructed' is just nonsense. Constructions are inventions. Scientific truths are not invented; they are discoveries. It was discovered that water is comprised of oxygen and hydrogen in the relations expressed in the formula H2O. Nobody ever invented the constitution of water, or even the formula that expresses it. Everything is what it is, and not another thing. An invention is an invention. An invention is not a discovery. A discovery is a discovery.


Don: " Larry, theories, hypotheses, scientific laws etc etc are NOT constructed."

Well, actually I'm saying that theories, etc. ARE constructed or invented, Don -- and I appreciate your use of the notion of "formulated" as a means, by contrast, of making this point as clearly as possible. I know this can seem crazy or nonsense, or at the very least counterintuitive. But even strongly counterintuitive notions can, after all, be recognized as true, however we understand that term -- e.g., the idea that length, or mass, or time itself should be affected by relative velocity, among many others. Here's the man who discovered or constructed that particular truth, for example:

"We now know that science cannot grow out of empiricism alone, that in the constructions of science we need to use free invention which only a posteriori can be confronted with experience as to its usefulness. This fact could elude earlier generations, to whom theoretical creation seemed to grow inductively out of empiricism without the creative influence of a free construction of concepts. The more primitive the status of science is the more reasily can the scientist live under the illusion that he is a pure empiricist."
Quoted in
Subtle is the Lord by Abraham Pais, p. 14

Or, here's a quote from near the end of an old and famous
paper of Quine's;

" The totality of our so-called knowledge or beliefs, from the most casual matters of geography and history to the profoundest laws of atomic physics or even of pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges."

And a little later: "... in point of epistemological footing the physical objects and the gods differ only in degree and not in kind. Both sorts of entities enter our conception only as cultural posits. The myth of physical objects is epistemologically superior to most in that it has proved more efficacious than other myths as a device for working a manageable structure into the flux of experience."

I don't put these quotes out as authorities, of course, but simply to show that others too have arrived at this sense of the constructedness of science and knowledge generally, and that, however outlandish it might sound, there are strong reasons why people for some time now have been struggling to overcome a representational notion of truth, and move toward a more relational, or radically pragmatic one -- one that views all truth as a "man-made fabric" that's more, or less "efficacious".

Saturday, January 30, 2010

On Fish


It is just one more effort to make science and religion somehow compatible . But her argumentative tactics and overall strategy is clever, if unpersuasive. The reason science 'works', when it does, is that its theories are true, and when it does not 'work, as it often does not, the reason is that its theories (hypotheses etc) are false. If you are a cranky chemist trying to prove that water is composed not only of hydrogen and oxygen, but also helium, your attempts at experimental proof will always fail, just because your new theory of water is false, and for no other reason. Also, science cannot be reduced to merely workable procedures. Realism about truth is the very soul of science.


"Don: The reason science 'works', when it does, is that its theories are true, and when it does not 'work, as it often does not, the reason is that its theories (hypotheses etc) are false."
Well, this is where the "fancy epistemological debates" come in, I guess. To my mind, your point above, though a familiar one certainly, has it exactly backwards: the reason scientific theories are 'true' is just that they work, and pretty much all scientific theories do indeed work up to some point at least -- e.g., Newtonian physics still being used to calculate orbits, despite being superseded by Einstein -- and where they fail to work, or don't work well, they're replaced by theories that simply work better (i.e., are "more true"). The point being that we have no way of assessing truth or falsity apart from what works (to a greater or lesser extent, implying that truth too is a relative matter).

The real if implicit epistemological shift that made science such a revolutionary methodology, in other words, is a change in the very definition of truth and falsity (not to mention knowledge, etc.).


This is two parts.

One is my first reaction to the essay written to someone else.

And in the end, her argument collapses on itself. Astrology, or channeling the dead, may be help some people find solutions or resolutions to their problems. But that does not obviate rightful attacks on their foolishness; it simply calls on the need for tact. Her argument reduces itself to a free pass justification of almost any alchemical thing that people might, say, turn to in times of difficulty that helps them. Her argument gets undeserved weight from the cultural legitimacy of religion. Let her face the implications of her argument when applied to cullturally deemed foolishness and thus not buoyed by cultural succor.

Two is a few comments on what you wrote Don which sets up themes and arguments more interesting, to me, than Fish’s essay.

I enter this tentatively because I know you have thought long and hard about this and I have not and I'll be happy to be “straightened out".

Does it matter what end of the truth/works telescope we look through? And don’t we need to draw a distinction between scientific theories and scientific facts?

So is Don’s example of what elements constitute water a theory or a scientific fact? And is the makeup of water on the order of saying Alnico consists of aluminum, nickel and cobalt. The latter is necessarily true because it’s man made and that’s how we define it. Does anything for these purposes turn on water occurring naturally? We can test for water and some things will pass the test and some things won’t, including a substance with helium provided by the cranky chemist.
The makeuo of water is different from, say, cosmological theories. I imagine as science moves up a scale from what is elementary to what can only be described by mathematical models, it is accordingly self conscious of its own provisonality. And for science to be science, it must be open to its own falsification. It is in principle always looking for a better answer/theory/hypothesis. However testing or verification occurs at these increasingly abstract levels can be encapsulated by the phrase “what works”.

So with these notions in mind, isn’t Don’s aphorism right that “realism about truth the very soul of science”. And wasn’t Don encompassing provisionality?

p.s. In Fish's essay, "what works" for Fish and his reviewee is whatever has a measure of efficacy, regardless of its lack of truth and regardless of its own truth claims and ultimate objectives. In science what is true is what works, and that's an altogether different thing, which difference is the ground on which the "Fish argument" proceeds.


Re: the first reaction, concerning religion, I'll just say that we've pretty much covered this in an earlier email exchange involving Roger et al. I'll reiterate my position briefly by saying that I think the current crop of militant atheists take too literal an approach to religious themes and in doing so misunderstand religion, its origins and its force, in much the same way that literal-minded fundamentalists of all kinds do (including astrology-believers, gaia-worshipers, socialist true-believers, etc.). Even more briefly: science deals with matters of empirical truth, religion with matters of meaning and purpose, so that they're orthogonal, and we make a basic mistake when we try to either merge them (e.g., "scientific" creationism, devout environmentalism) or pit them against one another (e.g., militant atheism).

Re: the second issue, on the nature of scientific truth, I think it does matter which of truth or efficacy comes first, since, as I indicated, I think this is really at the heart of the epistemological shift that ushered in the scientific revolution. The older idea -- which of course retains a certain intuitive appeal -- is that truth comes first and the truth is out there, so to speak, whether in the form of a realm of Ideals, or of axiomatic logic, or of divine creation, or simply inscribed in nature; in this view, our job is just to find this pre-existing truth, whether that's by thinking about it, or by accepting divine revelation and institutional authority, or of course by looking for it.

The first step in the shift I'm talking about, then, was to distinguish empirical or fact-based "truth" from other kinds, such as logical truth (and I won't get into again the whole issue of whether there are others as well). But the next and critical step was to surrender, in a sense, to a radical and thorough-going pragmatism in how we go about "looking for" empirical truth -- we accept that there is absolutely (so to speak!) no arbiter for such truth -- no authority, no tradition, no revelation, no axiom, etc. -- apart from what works. In saying that, I'd first want to say that what makes such pragmatism radical is that it refers to what works in the most comprehensive sense possible -- i.e., in all places and times to which we have access -- and in the most efficient sense possible -- i.e., what explains the most with the least. (The reason we have such common recourse to Occam's Razor, for example, is not because reality itself is simple but simply because it's more efficient.)

But then I'd say that, once we understand the scientific basis for truth -- that there is no way to access or measure such truth at all apart from what works -- it makes sense to reverse the old order of things, and instead just define empirical truth in terms of what works (in the comprehensive and efficient senses I've mentioned). In this sense, science isn't really discovering a truth that's "out there" -- though I recognize that this sort of scientific realism is both intuitive and pervasive -- rather, it's creating or constructing ever more workable, effective truths as it progresses.

This makes no real or epistemological distinction, then, between scientific theories and scientific facts or indeed empirical facts of any sort. Of course, if we define a as b, then "a is b" is a logical, as opposed to empirical, truth. But the chemical composition of water is clearly an empirical not logical matter, and if someone were to come along and claim to have discovered helium in its composition, what would, or should be our reaction? The old notion would be to reject it out of hand, because we already know the "truth" about water; but the scientific method should be to ask for reproducible evidence of such a claim, and to be willing to change our understanding of the truth about water under the impact of this new evidence of what works.

I say "should" partly because the older notion retains its instinctive force for all of us but also of course because there really are mere cranks and it would take a lot of this sort of evidence to alter something that has been shown to work so well in so many different contexts for so long -- but the principle is simply that whatever works better is what is more true. (A simple example of this change in received notions of scientific fact, by the way, might be the long-established notion that inert gases [aka noble gases] cannot form compounds -- which was true until someone finally formed such a compound, when it became untrue.)


On orthogonality, briefly—I had to look that word up—religion and science have some different purposes but they also have a fundamental common purpose: and that is accounting for the world. A religion that doesn’t cosmoligize is self refuting. The bane of any religion is exactly its cosmologizing, its truth claims. So the very thing on which its purposes are set—its very foundation—is obnoxious to intelligence. How militant one is in his atheism is, as I said, a matter of tact, not principle.

Save as to understanding that all scientific conclusions are by definition provisional and granting that there was an epistemic shift, if I understand it, from truth as out there waiting to be discovered to “what works” as truth, I am missing the practical import of that now in our understanding of what science is and how it “works” and the relation of that practical import to Fish’s argument. For the sake of that let me give you a (albeit simple minded) paraphrased version of a commonplace account of what science involves (as I understand it).

I invite you to then to please do three things, if you will: criticize it where you think it’s wrong; and tell me how the “epistemic shift “ makes trouble for this account; and finally tell me how these matters as taken up by you relate to Fish’s argument.

The scientific method involves hypotheses, theories, and laws. The scientific method is observation. Observations are plain facts. We observe, for example, that fire gives off heat and light. A fact is “the state of things as they are; reality; actuality; truth.” So before we search for the larger truth, we first accumulate small truths. And so science grows by gathering singular, simple facts.

A hypothesis as “an unproved proposition tentatively accepted to explain certain facts or to provide a basis for further investigation.” Any explanation for an unanswered question by observation and evidence invokes the scientific method. Science s tries to explain why things happen, and proposes hypotheses to accomplish that.

Richard Feynman said, “The principle of science, the definition, almost, is the following: The test of all knowledge is experiment. Experiment is the sole judge of scientific Truth.”

When two hypotheses contradict one another, at least one of them is wrong. Indeed, the entire universe does not contradict itself. Scientists must reason, or use the process of elimination, to decide which of two or more scientific experiments best explains an observation. In other words, the hypothesis must fit all the facts.

Hypotheses that survive experimental scrutiny are subjected to more rigorous tests. The original idea is re-tested. If any test refutes a proposed hypothesis, that hypothesis must be discarded or modified to account for the new facts.

As evidence is gathered, as facts are compiled, as experiments are undertaken, the working hypothesis gains support. Little by little, a hypothesis becomes a theory. The scientific method demands that, when new evidence comes to light, the theory must change to accommodate that new evidence.

Consider gravity, for example. Sir Isaac Newton first hypothesized a law for gravitational attraction over three hundred years ago, and it withstood all challenges until we discovered that the speed of light is a constant. Suddenly, Newton’s theories didn’t reconcile all the known facts. Albert Einstein modified the theory (by now called the law) of gravity to explain all these new observations.

But Newton’s Laws of Gravitation are still relevant. Einstein only added a refinement to a realm (known as Relativity) that’s rarely observed in the familiar world. Einstein didn’t throw away three hundred years of observation and testing. Instead, new knowledge is built on top of previous knowledge.

Einstein only tailored Newton’s Laws to fit the new facts. The old facts are still functional, and Relativity barely altered Newton’s findings.

How do you distinguish between a theory and law? In science a theory means “a formulation of apparent relationships or underlying principles of certain observed phenomena which have been verified to some degree.”

Webster defines the following:

1. Hypothesis — An inadequacy of evidence in support of an explanation.

2. Theory — Considerable evidence in support of a formulated general principal (as in the theory of evolution).

3. Law — Implies an exact formulation of the principle (as in the law of the conservation of energy).

Stated simply, this is how the scientific method progresses:

1. Observations lead to questions

2. Questions lead to tentative answers

3. Answers are tested in a laboratory, in the classroom, or in the field

4. Tests lead to modifications, and yet more tests

5. Modifications ultimately lead to theories

6. Theories lead to laws.

The law of gravity and the theory of evolution, for example, both lead better understandings. Newton and Darwin’s ideas have both been refined and tested for more than 150 years in every laboratory around the world. Science demands that all observations be accounted for. Any new theory must build upon existing data. Newton’s formulas and Darwin’s vigilant observations still demand a consistent explanation.

By searching for truth, we can understand how the world works. We can then learn how to change the way the world works, and discover how our observations, in turn, alter that world.

By starting with facts or “little truths,” we build a self-consistent representation of the universe that we’ve always observed. Truth is ultimately found through a slow, incremental, step-by-step process of elimination — not divine revelation.

Science and Religion

Stanley Fish:

...Tomorrow, Jan. 19, marks the official publication of Barbara Herrnstein Smith’s “Natural Reflections: Human Cognition at the Nexus of Science and Religion.” The title would seem to identify the book as an addition to the ever-growing body of studies that explore the relationships and tensions between religion and science, usually with the intent either of declaring one epistemologically or morally superior to the other, or of insisting (somewhat piously) that the two are compatible if we avoid extreme claims and counterclaims, or of triumphantly announcing that science is a form of faith, or of purporting to demonstrate that religion can be explained in naturalist terms as an expression of the instinct to survive and propagate.

While Smith rehearses these theses and shows limited sympathy for some of them (and disdain for some others), her object in the book is to interrogate and critique the assumption informing the conversation in which these are the standard contentions. The assumption she challenges — or, rather, says we can do without — is that underlying it all is some foundation or nodal point or central truth or master procedure that, if identified, allows us to distinguish among ways of knowing and anoint one as the lodestar of inquiry. The desire, she explains, is to sift through the claims of those perspectives and methods that vie for “underneath-it-all status” (a wonderful phrase) and validate one of them so that we can proceed in the confidence that our measures, protocols, techniques and procedures are in harmony with the universe and perhaps with God.

It is within the context of such a desire that science and religion are seen as in conflict, in part because the claims of both are often (but not always) totalizing; they amount to saying, I am the Truth and you shall have no other truths before me. But if religion and science are not thought of as rival candidates for the title “Ultimate Arbiter,” they can be examined, in more or less evolutionary terms, as highly developed, successful and different (though not totally different, as the history of their previous union shows) ways of coping with the situations and challenges human existence presents.

Thus the argument made by some champions of religion that were science to turn its naturalizing lens on itself, it would discover that “its theories reflect nothing more . . . than the biologically . . . shaped ideas and activities of mere mortal humans” is damaging only if science’s procedures come to nothing once the claim to transcendence of the human is abandoned or debunked. And in fact, says Smith, science and everything we appropriately value about it do very nicely even after such a debunking has been performed. For “what gives the cultural form (or set of ideas and practices) we call science its epistemic authority is not the putatively transcendent truth of its theories, but the fact that its models of the operations of the material-physical world enable us to predict, shape, and intervene in those operations more effectively in relation to our purposes.” (Richard Rorty often makes the same point.)

That is to say, we have certain problems, goals and difficulties with respect to the physical world, and of the models available to us for application and elaboration, science more often than not proves to be the most efficacious. Were our purposes otherwise — say, to deal with trauma, political hopes and fears, the project of community building — we might have recourse to other models and ideas from literature or philosophy or religion or even sports.

Once the shift is made from asking “what is and should be the ultimate ground of our actions?” to asking “what resources are available to us for dealing with these problems and opportunities?,” the question of which model or way of conceptualizing things is true or truer becomes, Smith observes, less urgent and less interesting. The inability of science to demonstrate its truth by standards not internal to its practices is not something to worry about because science “as a method is not the sort of thing that can be thought either true or false.” Rather, it works (with works being defined by our needs) or it doesn’t: “[L]ike using low-octane fuel or following a low-fat diet, the minimalism and self-restraint that defines it can only be thought more or less appropriate for the purposes at hand.”

What this means, among other things, is that the various projects we pursue and engage in may not all cohere in a single intelligible story. We may not be unified beings. In fact, Smith says, “the sets of beliefs held by each of us are fundamentally incoherent — that is, heterogeneous, fragmentary and, though often viable enough in specific contexts, potentially logically conflicting.” The potential for logical conflict, however, exists only under the assumption that all our beliefs should hang together, an assumption forced upon us not by the world, but by the polemical context of the culture wars. It is that context which generates the puzzles and (apparent) conundrums culture warriors hurl at one another, usually in the form, ”Well, if your philosophy tells you that facts are relative to belief systems, how come you don’t walk through walls or jump out of your apartment window?,” or (from the other side) “Well, if your philosophy tells you that religion and ethics are reducible to materialist evolutionary forces, why do you bother to be ethical at all?”

In short, if you believe this, how can you also believe that? The answer is that the realms of belief supposedly existing in a condition of opposition and conflict are, at least to some extent, discrete. What you believe in one arena of human endeavor may have no spillover into what you believe, and do, in another.

Thus, for example, you may have assented to an argument that calls into question the solidity of facts, but when you’re not doing meta-theory, you will experience facts as solidly as the most committed and polemical of empiricists. In doing so you will not be inconsistent or self-contradictory because the question of a belief in facts arises only in the special precincts of philosophical deliberation. In everyday life, we neither believe nor disbelieve in facts as a a general category; we just encounter particular ones in perfectly ordinary ways; and any challenge to one or more of them will also be perfectly ordinary, a matter of evidentiary adequacy or the force of counter examples or some other humdrum, non-philosophical measure of dis-confirmation. The conclusions we may have come to in the context of fancy epistemological debates (a context few will ever inhabit) will have no necessary force when we step into, and are asked to operate in, other contexts.

This last point is mine, not Smith’s (although I have reason to think she would find it agreeable). Her point, stated frequently and in the company of careful readings of those who might reject it, is that while science and religion exhibit different models, offer different resources, display different limitations and enter into different relationships of support and (historically specific) antagonism, they are not, and should not be seen as, battle-to-the-death opponents in a cosmic struggle. Nor are they epistemologically distinct in a way that leaves room for only one of them in the life of an individual or a society: “There is nothing that distinguishes how we produce and respond to Gods from how we produce and respond to a wide variety of other social-cognitive constructs ubiquitous in human culture and central to human experience.” Which is not to say that science and religion are the same, only that that their very different efforts to conceptualize and engage with very different challenges have a common source in human capacities and limitations.

Needless to say, not everyone will be pleased by this argument. Those strong religionists who believe that the overweening claims of science (or scientism) must be denounced daily will not be pleased by an argument that says nothing about redemption, salvation and sin, and gives full marks to science’s achievements. (Smith, a pupil of B.F. Skinner’s, has been a sympathetic and knowledgeable student of science for many years.) And those materialist atheists who see religion as the source of many of the world’s evils and all of its ignorance will not be pleased by an argument that finds an honorable place for religious beliefs and practices.

And some will be irritated by a book that does not take sides, but tells you what the sides are and how they make their (flawed) cases, and tells you, finally, that there needn’t be any sides at all. That’s what makes the book good....

Saturday, January 23, 2010


Real wisdom will inhere
in oppositions clear.
Fake wisdom’s fake finery
yields the overly binary.
This shambling meditation,
wisdom’s degradation,
pretence of mystery in riddles,
by excluding applicable middles,
sets the root of its declension

in its very mention
of seeing
such Haitian suffering
without faith’s buffering
an indecency being.*
Wisdom does not draw
on such men of straw,
nor fashion its own sweet sumptuousness
on such self regarding presumptuousness.

"And about the ninth hour
Jesus cried with a loud voice,
saying, 'Eli, Eli, lama sabachthani'?
that is to say,
'My God, my God,
why hast thou forsaken me?' "

* “And to regard all this suffering as meaningless seems indecent.”

Just Kiddin' Around

Consider the lapsed intellectual,
who forgoes being Asexual.
Becoming quite lusty
with girls who are busty,
he now puts the A before textual.

Friday, January 22, 2010

Jeffrey Goldberg Interviews Elliott Abrams on Mid East Peace

Elliott Abrams on The West Bank Resurgence

21 Jan 2010 10:57 am

In my continuing mission to understand the Obama Administration's understanding of the Middle East peace process (such as it is), I turn now to Elliott Abrams, the key Middle East policymaker on President Bush's National Security Council. Unfortunately, I got sidetracked by bigger questions than those that concern George Mitchell's travel schedule.

Jeffrey Goldberg: You write this week that the peace process is a failure, for manifold reasons. But step all the way back: Do you think peace between Israel and the Palestinians is possible so long as Iran both pursues a nuclear weapons program and backs Hezbollah and Hamas?

Elliott Abrams: I don't view Iran as the key obstacle to a peace agreement. Certainly, Iran's support for extremist positions on issues where compromise is needed, and its support for extremist groups, makes getting to an agreement harder. If Iran gets a nuclear weapon, its influence and that of Hamas and Hezbollah are strengthened. But the problem thus far has been the unwillingness and/or inability of Palestinian leaders to make those compromises and sell them to the Palestinian public. A few years ago when Iran and Hamas were less influential, they could not or would not do it--not at Camp David or Taba, nor after Annapolis in January 2009 with Olmert. This stems from a combination of factors, not just Hamas and Iran: extremist positions no doubt have some support among Palestinians; the Fatah/PLO leadership is weak and not fully legitimate; and as implementing any agreement will take years, Palestinian leaders are greatly disadvantaged by a "shelf agreement" where all their compromises appear to come up front.

JG: In reading your piece, I was struck by how central a role Salam Fayyad, the Palestinian prime minister, plays in your thinking. How tenuous is the West Bank? Could progress be made without Fayyad in power?

EA: Fayyad plays a key role. He has the trust of donors (Arab, European, and American), who see him as the guarantee official aid money won't be stolen. Palestinian security forces report to him, and know he will not order them to work for his personal benefit or just for the Fatah Party. He is also central to good economic policies that facilitate economic progress in the West Bank. But he is not a member of Fatah, did not do well in the 2006 elections, and has no clout in the PLO. Moreover, he is not surrounded by a large cadre of first class assistants. He's not a one-man band, but it does seem to me that no one else can hold this all together. Without Fayyad as prime minister, the development Palestinians are achieving in the West Bank would be a lot slower.

JG: Is there a danger that the West's embrace of Fayyad could undermine him further?EA: Yes, the Western embrace has its downside. Fayyad's most important audience is in the West Bank and Gaza: Palestinians who want their government to perform effectively. I think there's a solution, which is for Arab governments instead of (or in addition to) Western governments to embrace him. This is why I thought it was so foolish for the Obama Administration to go around asking Arab states to reach out to Israel (and be rejected, predictably) when they should have been asking the Arabs to reach out to the PA. That was politically possible and would be very useful. It would be a more fruitful diplomatic path than the one Mitchell has pursued, which has actually produced nothing but setbacks.

JG: It's my belief that settlements are the vanguard of binationalism, rather than the leading edge of Zionism. But we all acknowledge that some settlements will stay where they are in the framework of a final agreement. Do you think that the maximum Israel can offer on this issue matches the minimum the Palestinians can accept?

EA: If we can separate the issues of Jerusalem and settlements, I think a settlement solution is possible. The offers Barak made at Camp David, and that Olmert made in January 2009, are the maximum Israel can offer and give the Palestinians what they need. Olmert offered an almost one for one territorial swap (actually 99.3%, with the Gaza-West Bank link counting for 0.7% of territory). I am assuming that the Palestinians realize some compromise is necessary, and realize that an exact return to the 1949 armistice lines is not possible. If the minimum the Palestinians can accept is an exact return to the 1949 lines, there will never be an agreement. But I don't believe that; I don't think territory or the settlements are the problem. I believe abandoning the "right of return" is politically far tougher for the Palestinian leaders, and solving Jerusalem is a much harder problem for both sides.

JG: Do you give the so-called BDS movement (boycott, divestment, sanctions) any chance of success? In Europe the strategy appears to be working. And, doesn't the existence of the BDS movement put more pressure on Israel to achieve permanent borders, and the recognition of the majority of Muslim states, sooner, rather than later?

EA: If that movement were fair and reasonable and had as its goal sensible progress toward a resolution of the Israeli-Palestinian conflict, it might have more impact on Israelis. No doubt it worries them. But it seems more motivated by anti-Semitism and hatred of Jews and Israel than by pragmatic desires to advance a settlement. The extraordinary bias in Goldstone Report, which deems Israeli self-defense a crime; the publication in the European press of stories about Israelis selling body parts from Arabs, reminiscent of the lowest forms of medieval anti-Semitism; the efforts to arrest Israeli officials when they travel to Europe-- these all seem to Israelis (and to me, sitting in Washington) to be asking Israel not for reasonable compromises but for surrender. Israelis want to achieve permanent borders and they want recognition by Muslim states; they do not need European pressure to seek those goals. But their society is healthy and it will not commit suicide in a quixotic effort to achieve acceptance and popularity among foreigners whose prejudices against the Jewish state are unconquerable.

JG: You say that Goldstone treats Israeli self-defense as a war crime. But looking back, do you think Israel made any mistakes in its incursion into Gaza, and do you think that some of Israel's actions could, in fact, constitute war crimes?

EA: The issue is not whether Israel made any mistakes of policy, strategy, or implementation, nor whether any Israeli soldier violated his instructions. As to the latter, I assume that happens in all armies, and all decent armies, like ours and the IDF, investigate and punish misconduct. But only Israel gets a UN Human Rights Council "report" whose biases and errors should be a source of shame to that Council (though even at its young age it is obviously beyond shame). As to errors of policy regarding Gaza, they absorbed 8,000 rockets and mortars aimed at civilians before they went back in, all the while devoting enormous energy to developing their defenses from such weapons (the "Iron Dome" system) so that they would not need to go in again. Name the country that would take 8,000 attacks against civilians without responding before criticizing Israel for doing so. The question that presents itself, I think, is whether a tougher response earlier on, shortly after leaving Gaza in 2005, would have taught Hamas the lesson it has now apparently learned and led it to stop the attacks on Israel from Gaza.

Just Because It Is So Damn Funny: Stewart Takes the Piss out of Olbermann

Thursday, January 21, 2010

Basman v. Basman

1. See:

2. In the matter of

Itzik Basman


Muni Basman

Judgment of the Court

Late in 2009, Muni Basman, Itzik Basman and Aviva Basman enjoyed a lovely dinner at a restaurant on College St. During the meal, Muni mentioned a book or article arguing that Heidegger's theories should not be considered philosophy because his ideas are offensive. Itzik doubted that such a book/article existed and challenged Muni to produce evidence in support. Itzik bet Muni $100 that he could not produce such evidence. Muni accepted the wager. I was asked to judge the sufficiency of the evidence.

In December 2009, after I settled the question of the debate, Muni submitted a review of Emmanuel Faye's book, “Heidegger: The Introduction of Nazism Into Philosophy,” written by Patricia Cohen of the New York Times online books section (

Shortly thereafter, Itzik suggested that we should read Faye's book directly.

Itzik also argued that Faye disputed Heidegger's legitimacy as a philosopher because his ideas do not amount to philosophy, that they are nothing more than "high falutin hate speech", and not because they were offensive per se. In addition to relying on Ms Cohen's review, Itzik provided a lengthy article by Carlin Romano, a critic for The Review in support of his theory.

Having considered Ms Cohen's article, Mr. Romano's article and Itzik submissions, I am satisfied on a balance of probabilities that there exists a book arguing that Heidegger's theories should not be considered philosophy because his ideas are offensive.

For the purpose of this wager, I am satisfied that I can rely on both reviews of Faye's book, which both come from reputable sources. Both of the book reviews have persuaded me that Faye's questioning of Heidegger's legitimacy as a philospher is inextricably linked to Heidegger's offensive views as a Nazi.

As such, the Court Orders that Muni Basman has won the wager.

Itzik Basman is ordered to pay Muni $100.00 forthwith.

The Honourable Justice Aviva Basman

Basman on Beinart on Brown aka Mr. 41


What should Barack Obama do now that Scott Brown has pulled off the biggest special-election upset in a generation? Push through health-care reform, and fast.

There are two arguments against doing so—one moral, one political—and they’re both wrong. The moral argument is that enacting health-care reform in the wake of Brown’s victory would be “undemocratic.” But what does that mean, exactly? I hate to shatter anyone’s illusions, but the United States is not actually a democracy; it’s a representative democracy. At the federal level, Americans don’t vote on whether bills should become law. They elect representatives who vote on whether bills should become law. That means that presidents and members of Congress have the right to defy the will of their constituents; they just have to face the consequences at the ballot box.

Passing health care, therefore, even if most Americans tell pollsters they oppose it, doesn’t violate the spirit of our representative democracy. Republicans certainly didn’t think so when they cheered President Bush’s surge in Iraq, even though most Americans opposed that. It’s a little rich, in fact, for the party that has employed the filibuster to force the White House to corral 60 votes to pass health care in the Senate, and which lustily defended the legitimacy of George W. Bush’s 2000 election, even though he lost the popular vote, to talk about the will of the people.

Besides, when it comes to Obama’s health-care reform effort, the will of the people isn’t entirely clear. It’s true that for several months now, polls have shown that Americans oppose it by 10 points or so. But if passing health care were undemocratic because of those polls, Scott Brown’s election would be irrelevant. What Republicans are claiming is that Brown’s election represents a referendum on health care. How do they know? Yes, Democrat Martha Coakley supported Obamacare, Brown opposed it, and Brown won. But had Ted Kennedy been on the ballot, then the pro-Obamacare candidate almost certainly would have won. In Massachusetts, according to pre-election polls, a majority of likely voters told pollsters that they opposed the health-care reform bills moving through Congress. But in the Virginia and New Jersey gubernatorial elections last November, majorities told exit pollsters that they supported them. And in last fall’s special House election in upstate New York, a majority of voters expressed support for a public option. Why weren’t those races referendums on health care? Did Republicans view it as undemocratic to oppose health-care reform a year ago, after Obama had made universal care a central element of his presidential campaign, and won that campaign big? Of course not.

If the moral argument against passing health care makes little sense, neither does the political argument. Already, a bevy of commentators are warning that pushing through health-care reform will come back to haunt Democrats at the polls this fall. That may be true, but so will not passing it. Enacting health-care reform will surely enrage the Republican Party’s already-enraged Tea Party base, along with some surly independents. But in both the House and Senate, Democrats have already voted for Obamacare, which means that they’ll be in the crosshairs of those voters no matter what. At least by passing something they will give their own party activists a reason to turn out. (It’s worth remembering that Democrats lost Congress in 1994 not only because their support for tax increases and gun control drove conservatives to the polls, but because their support for NAFTA prompted many liberals to stay home.)

What’s more, many voters say they’re upset about gridlock in Washington. According to a recent Quinnipiac poll, about half of the country considers Obama’s first year a failure. If they think that now, imagine how they’ll feel when the single biggest item on his legislative agenda collapses. Democrats have gone through this once before. They abandoned their health-care reform effort in 1994, and voters didn’t exactly reward them for it come fall.

The reality is this. As recently as last summer, a small majority of Americans supported Obama’s health-care reform effort. In the six months since, support has deteriorated in direct proportion to the deterioration in Barack Obama’s approval ratings more generally. The reason has less to do with revelations about the details of Obamacare than with a broader change in the national mood. Obama has massively increased the deficit in a bid to save the economy, and yet the economy—as experienced by most Americans—remains horrendous. In this environment, it’s no surprise that fewer Americans support Obama’s health-care plans. Fewer probably think he’s a good basketball player too.

Ultimately, Obama’s political fortunes will turn on whether Americans feel genuine economic improvement by the time he runs for re-election. If the economy turns around, and he signs health-care reform, he’ll win a major re-election victory and he’ll have had the most significant first term of any Democratic president in four decades. If the economy turns around, and Obama doesn’t sign health-care reform, he’ll be Bill Clinton—a cerebral, eloquent, savvy liberal able to save his own political skin but unable to make profound change. The choice is his.


I don't get what Beinart puts against the "moral" argument. He draws the distinction between democracy and representative democracy. (Actually do we really need Beinart to remind us that Americans express their will through their representatives?) But, that aside, Beinart in his rebuttal to the moral argument misses the necessary interrelation between the political and the moral.

His urging is that regardless of what most Americans arguably don't want--health care in its present legislative form--representatives should jam the present Senate bill through regardless because they owe their constituents their judgment not their fealty. But this misconceives the issue: the issue is a blend of the moral/principled and the pragmatic. To say that representatives don't owe their constituents their fealty does not inexorably lead to principled/moral judgment unaffected by popular will.

If Brown's stunning election, following the elections in Virginia and New Jersey, accompanied by polling evidence, reflects Americans' general and profound dislike of the present legislation, then, as a principled matter, representative government is well served by not muscling through the present legislation. The present Senate bill is not so singularly compelling, as was something like civil rights legislation, so as morally to demand passage in sheer defiance of popular will expressing itself in a triad of gubernatorial and Senate elections.

Further, and most telling, Beinart is slyly silent on whether he favors tricks like forcing the bill through before Brown is sworn, or even delaying his swearing in order to ease the jamming. Those would be unprincipled and immoral.

Principled is getting Brown get sworn in, and then the Democrats acting to pass their legislation, with the devil taking the hindmost. And this accords with political reality, it seems. Prominent democrats like Frank, Reid, Weiner, Feinstein, Pelosi and arguably Obama himself have said variously: there ought be no further legislating until Brown gets sworn in; the bill needs to be scaled back; and there is no will in the House to pass the Senate’s bill. All these statements get the bill back to the Senate and Brown being seated.

There then emerges the issue of the filibuster, the success of which Brown looks to enhance. Is it special pleading in Beinart to dislike the filibuster in relation to this legislation? Arguments exist pro and con the filibuster, to be sure. But Beinart only escapes special pleading with his opposing the filibuster when Republicans commanded the Senate.

Finally, as to the politics, I see this differently than Beinart. Massachusetts was a big loss for Obama. But he can’t come on strong in response, including doubling down on health care. He needs effectively to tell America he hears it. He needs to back off trying to pass heath care right now, in its present form, as a huge, complicated, economy-realigning bill, when Americans dislike it.

Assertiveness here could deepen and entrench the disaffection shown in Massachusetts, Virginia and New Jersey and doom Obama’s presidency.

(Anyway, the Senate and House Bills are both centralized and top-down, rooted in bureaucracy. The Wyden-Bennett plan, for an example, and as David Brooks points out, was consumer and competition oriented, emphasizing consumer choice and power. Something like that plus tort reform could be, well, a “reset”. America seems temperamentally suited to the latter and ill disposed to the former.)

So as just noted, if Democrats act as though Americans have not protested, if they were, say, to try to force through such unpopular legislation, it would ramify through its body politic virally. And it would cut against the presidential retooling already in the works and starting to peek out and take some baby steps--populism rooted in genuine connection and skilful triangulation.

I think a Democratic President, set back on his heels, successfully did that once before, not so very long ago.

The Democrats should in due course pick their battles and take their stand, but not now, and not with this legislation

Tremendous Post Today in Contentions by David Hazony

The Hasbara TestDavid Hazony - 01.21.2010 - 9:39 AM

"...It has been nearly three years since the Israeli foreign ministry decided to “rebrand” the country’s image through a silly campaign that included pictures of beautiful sabrinas with little clothing profiled in Maxim magazine. Oddly enough, the campaign didn’t work. In the meantime, we’ve had the Goldstone Report, Swedish accusations of IDF soldiers ripping apart the bodies of Palestinians, some still alive, and selling their organs, and so on. The diplomats scratch their heads, wondering why Madison Avenue wasn’t the answer.

In the past few weeks, however, three major events have propelled Israel to the forefront of the public debate in a much more positive light. Following the unsuccessful undie-bomber attack on a Detroit-bound airliner, Americans effluviated about the need for improved airport security, and suddenly everyone was aware that Ben-Gurion airport has not had a security breach in a generation, despite the fact that its passengers never have to part with their favorite nail clippers or the 6-oz. bottles of perfume they picked up in Tel Aviv. The difference, it seems, is not that Israelis indulge in racial profiling, but that their security personnel are intensely trained to recognize the fact that people who know they are about to die behave differently than ordinary airline passengers (who knew!). Although that’s oversimplifying things, the fact is that Israeli airline security really does put a far greater emphasis on the human components of terror prevention: recognizing behaviors, building a network of informants, and so on.

The second event was the earthquake in Haiti. Within hours, Israel had dispatched more than 200 personnel, including rescue teams and high-level medical staff. They set up a full-fledged field hospital, the only one of its kind, complete with digital imaging, an ICU, and more. For the past couple of days, both this CNN report and this MSNBC one have been passed around the Internet, highlighting Israel’s hospital. In addition, today we learn that the Israelis also set up a global communications center, enabling journalists to use the Internet and phones via Israel’s Amos satellite. One American observer has described this as a “home run” for Israeli PR.

The third was the publication of Saul Singer and Dan Senor’s Start-Up Nation, which hit the New York Times bestseller list. Of all the pro-Israel books to come out in the past year, this one probably made the biggest splash: by highlighting what Israel is indisputably good at (business innovation), Singer and Senor succeeded in changing the subject and constructing a positive image of Israel that is not all war.

How come these recent events have been so successful at helping Israel’s image, while the “rebranding” stunt didn’t? I’m no PR pro, but it seems like the first rule in boosting your image is to not throw money at the problem but instead correctly identify what it is you want to sell. The Western public is deeply inured to vacuous PR. Just think of how many political candidates have been utterly devastated at the polls despite vastly outspending their opponents on ads, or how President Obama’s media-saturation assault over the past year has failed to prevent his slide in approval ratings. It really does come down to the product, doesn’t it?

So let’s take a simple test, involving three key statements Israel has made to the world in recent years. Which of the following do you think does the best service to the country?

1. Israelis have a fascinating, powerful, human-friendly, and human-sensitive instinct that makes them take care of Haitians, identify terrorists by their behavior rather than a TSA-approved checklist, and encourage creativity and entrepreneurship.

2. Israel has the Most Moral Army in the World, and when we blow things up, we do it with the fewest civilian casualties possible, given how ruthless our enemy is.

3. Israel has lots of attractive women.

The fact is that (1) is true and proved by events; (2) is true but only helpful as a rearguard maneuver when war is forced upon us; (3) is true but irrelevant. Israel has succeeded in Haiti for the simple reason that Israelis really wanted to help; took swift, creative, and effective action without letting bureaucracy get in the way; and only then made sure CNN and MSNBC crews had access. As for (2), it is true that the IDF did a reasonable job of using YouTube to show how bad the Hamas guys really were, but wartime is always bad for PR in most of the world, and all Israel could do was make the best of a rotten situation. And as for Maxim, it is very hard to avoid the conclusion that “rebranding” was anything but a waste of money and energy.

So I suggest a radical new approach to Israel’s PR woes: Be good. Do things that express your best side. And make sure everybody knows about it..."

A Further Note on Just War Against the Proposition that there is Nonesuch

Proportionality can be tricky admittedly. But here is a simple example of lack of proportionality. A small kid tries to hold me up and I easily overpower him and disarm him and subdue him. But then I beat him a lot maybe on the rationale(ization) of teaching him a lesson. It may be, for example, Israel was justified in striking back against the years of Gazan shelling—a just war, perhaps. But if at some point it crossed a line over to a disproportionate response—which can argued both ways--then we have an international and recent example, analogous to my simple home spun example, of a just war which arguably lost righteousness once the line of proportionality was crossed.

And what about military incursions to staunch genocide?

(An “eye for an eye”, by the way, was in fact a progressive advance over more ancient examples of revenge- based wider bloodletting. Of course enlightened countries moved past "an eye for an eye" and moving past it, needing to, that is to say, was exactly the theme of Hamlet.)

I really don’t understand all the anatomizing of the concept of self-defence in an effort to deal with the morality or justice of it. I can understand and respect a pacific position though I think it is intellectually unsustainable. If for example A is willing to endure all manner of aggression against his person and refuses on principle to strike back even in self-defence, I can see and even admire that. But what if A is present and by proportional force can prevent harm to someone within his lawful charge, his child or his wife or his student, but does nothing out of pacific principle? Then I think A's position falls apart because it entails harm to an innocent other for whom A is responsible.

International analogies include, as mentioned, the state protecting its citizens from aggression, an ally coming to an ally’s aid—first Gulf War, and preventing genocide—the bombing in Yugoslavia, not to mention the master example, the allies’ fight in WW 11.

War is hell. Of that there is no doubt. It is, as someone said here: “… miserable, disgusting, ridiculous and sad.” But, for all that, it does not follow that every war is unjust nor does it follow that no one wins a war. That is of course a patent historical absurdity.

Here are the conditions of a just war as laid down by Aquinas (all credit to Wiki):

1. The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

2. All other means of putting an end to it must have been shown to be impractical and ineffective;

3. There must be serious prospects for success;

4. The use of arms must not produce evils and disorders graver than the evil to be eliminated.

The power of modern means of destruction weighs very heavily in evaluating the fourth condition.

Wednesday, January 20, 2010

Memo on Who's a Spouse under Ontario Law: the Names and Facts have been Changed to Protect the Innocent


You asked me what I thought about a possible claim by E for spousal support and more precisely might you and she be considered spouses for spousal support purposes under Section 29 of the Family Law Act. You have a copy of that section. That questions falls to be determined by whether, given your and E’s circumstances, you and she can be considered in the words of Section 29 (b) as having “cohabited… in a relationship of some permanence, if… (you)…are the natural or adoptive parents of a child.”


I have my notes of when we first meet and the brief bits of information I then got and your written answers to the questions I emailed to you derived from an Ontario case (Molodowich), and sometimes called the Molodowich test, and used often by courts in Ontario and in other provinces as well.


It is reasonable to think that if you go to court for your parenting rights, you will face E’s claim for spousal support. There is on your facts no black and white answer to the question of her entitlement. That said, I think E can make a strong argument for it based on the discussion below. The presence of a child in the analysis is the most compelling reason why, when combined with the two 5 month recent periods of actual cohabitation, your ongoing support for E and A, from the time of his birth to date, keeping them to date both on your medical plan, and her not having worked for a considerable period of time. My reading of the cases is that when children are part of the factual mix, judges will bend over backwards to fit the parties into having cohabited in a relationship of some permanence, particularly when, as appears here, one of the parties is financially dependant on the other.


You will understand that there are on your facts no black and white answers to the question as each cases turns on its own facts. But two cases present you with, and illuminate, particular problems for you.

One is Hazlewood, a 2000 case, in which the facts are in my view stronger than yours, but where the legal reasoning tells against you. It concerned a motion for temporary support, not a trial decision. In Hazlewood, the parties never married but had a weekend relationship over about seven years, while keeping separate homes. The children lived with the mother and the father would come every weekend. The parties on weekends functioned as a couple. The father named the mother a dependant on his health plan and the mother gave up a job to stay home with the children. The father kept a room in the mother’s house and had some personal effects. The father supported the mother financially throughout.

I note you had two broken periods of actual cohabitation of 5 months each starting in August 2008—August to December 2008 and August to December 2009. You have till now both A and E on your health plan. You have throughout, starting with A’s birth, July 9, 2006, supported E and A together. E does not work. She relies on what you pay her. I also note about a month or two ago--before the final separation-- E loaned you $10,000.00 when you faced a cash crunch in your business activities. You intend to repay her next month. I note as well that E has two real estate investments and is income poor but has some assets.

Justice Wildman in Hazlewood was precisely concerned with whether the parties can be said to have “cohabited”. They conceded that they had a relationship of some permanence. She states the clear law that parties may be cohabiting even when not living together. It is important to note at this point in the discussion that your issue is somewhat different because you and E have cohabited. But can you said to have had done so “in a relationship of some permanence”.

Justice Wildman then moves through the Moldowich test in application to the facts before her. She says that while each case turns on its own facts, whether there has been “continuous cohabitation” is a subjective and objective test. What do the parties feel about it? How did others see it? But here comes the problem. Her Honour says:

[18] “Although it is difficult to determine the state of mind of a couple, it is a useful concept to consider in reviewing the cases which have rejected a spousal finding based on a lack of cohabitation. In these cases, there were generally no children born of the union…”

Following on this Justice Wildman says at [37] and [38]:

[37] There are numerous other cases cited to me by both counsel which I have reviewed but do not need to comment on individually. In each of the cases in which a finding of cohabitation was not made, the Court looked at the relationship and held that there was not sufficient indicia of a quasi-marital relationship to support a finding of cohabitation. Conversely, in the cases in which a finding was made, the Court looked at the individual circumstances and decided that, in the circumstances, their relationship should be treated as one of spouses for the purposes of support. In no case was it found that continuous daily cohabitation was necessary for a finding under s. 29.

[38] One of the strongest indicia of an intention to be treated as a family is the existence of children born to the couple. When this is combined with an element of financial support by one party to the other, an altering of the roles in the relationship as a result of the birth of the children and some time spent together on a regular basis, this relationship should be considered to be "cohabitation in a relationship of some permanence" within the meaning of the Family Law Act. The amount of residence sharing which is necessary to support a spousal finding where there are children and ongoing financial support is probably less than would be required if either of these important factors were absent. Although these two criteria are not determinative of the question for all cases, their existence is very persuasive to the Court in assessing whether or not a family unit has been established.”

Commenting on these paragraphs Justice Howden in Sturgess said at [7]:

“Wildman J. in Hazlewood found the birth of a child to be ‘one of the strongest indicia’ of cohabitation of the parents. She reasoned that the presence of a child born of the relationship combined with ongoing support payments should reduce the amount of residence share necessary to support a finding of cohabitation. She described the two factors, child born of the relationship combined with provision of support payments, as "very persuasive to the court". While she indicated they may not always be determinative, clearly her approach attributed a very significant weight and value to them.”

The problem Hazlewood confronts you with then is then compounded by DeSouza, a 1999 Ontario case. It had slightly strange facts but can clearly be read to hurt you on the question of “a relationship of some permanence”. The parties had been married for three years and had two children. They divorced in 1996. In May 1998 they reconciled and the mother sold her assets and moved in with the father. She moved out in November 1998. Therefore they lived together for only 6 months. Again on motion for temporary support, Justice Schnall held the mother was a spouse under section 29 (b) of the Family Law Act. She was entitled to claim spousal support. Their cohabitation was a relationship of some permanence. And it did not matter that the parties' children had been born before the cohabitation.

Here is some bad reasoning for your position from DeSouza:

[8] “There is no issue that the parties are the natural children of the parents. There is no issue that they “cohabited” during the relevant time period. The respondent contends, however, that this short period of cohabitation does not constitute a “relationship of some permanence”; further that the reference to “children must refer to children born or conceived during this period of cohabitation, and no to children born prior to the parties’ divorce.”

[10] “A relationship of only 6 months may still be considered to be a relationship of “some permanence”. … (in) the case of Re Labbe …Judge.. Weisman found that a period of…even six weeks could support a finding that the relationship was one of “some permanence”. Where he found that the parties had discussed the possibility of marriage some day, he could not find that there was no permanence to the relationship.”

[11] “In the case before me, the parties had cohabited for about six months, there was an economic component to the relationship, the applicant had taken significant steps in changing her situation by moving and selling her assets and the parties considered themselves a “family unit”. I cannot therefore conclude that that there was no permanence in this relationship and the intended permanence, which lasted for six months (significantly longer than in the Labbe case), constitutes a relationship of some permanence.”


1. Please note that should E advance such a claim she will seek, I presume, by her own evidence to counter any evidentiary suggestion by you that goes against your “togetherness.”

2. I have copies of the cases I referred to and can get them to you if you want to see them.

3. Please advise if I have any important facts wrong.

4. I have not commented, because you did not ask me to and I would need more information in any event, on what order for spousal support might go against you as to duration and as to quantum.

5. The bolding is my own for emphasis.

6. Please advise if you have any comments or questions.

Monday, January 18, 2010

Me and Ledocs: Clarification Requested and Provided


I fear, basman, that is you who are confused, not I. I said that it was absurd to say that Americans can rely upon lawyers to avoid grammatical ambiguity in contracts. I never said that it was absurd to assert that Americans do rely upon lawyers in this way, nor did I even say that the reliance was absurd as compared to an alternative of not having licensed attorneys. There is clearly a broad range in the general education and grammatical competence of licensed attorneys in the US. One reason for this is that the US probably has far too many lawyers per capita.

I am making two points about the pattern of Salt's posts, and they are related. Salt is probably underestimating the sophistication of the grammar implicit in the black vernacular. It was pretty clear from her initial post that she knows nothing about the subject, either theoretically or empirically. Second, she is overestimating the grammatical competence of the American professional class, prominently including lawyers, but also including CEO's.


Did I misread you? Is the question between you and your interlocutor really whether lawyers can be counted on to avoid “grammatical ambiguity” in contracts? If it is I confess to overreading the issue between you.

It’s an odd question, though it may make sense in the context of your entire exchange with Ms or Mr. Salt, which I have not overly parsed. But I continue to think lawyers’ general grammatical competence is comparatively good amongst professionals because competent use of language is uniquely essential to their professional life. So that then gets back to the same point I may have raised too broadly but now oddly narrowed: namely “that Americans can rely upon lawyers to avoid grammatical ambiguity in contracts”. It's an implicit part of the general reliance on lawyers to draw competent contracts. So sure people can and do rely on lawyers in the way you frame the question.

About too many lawyers in your country I do not know: same for the sophistication of the grammar implicit in black vernacular English.

What, I wonder though, would be the evidence for over or under or just estimating the grammatical competence of American professionals? (I guess that evidence could be marshalled by you and the estimable Ms or Ms Salt on the question of lawyers' comparative grammatical competence.)


Lawyers probably write more clearly than engineers, but engineers can rely on exhibits and equations to communicate the gist of what they are writing. They probably write more clearly than doctors, for the reason you give. There isn't much point to arguing about the grammatical competence of American lawyers outside of the precise context in which it arose for me here. I don't think that the standards are as high as one might like, and I don't think that they need to be, for most practical purposes. There probably is a literature that pertains to the question. I can imagine various Supreme Court justices complaining in speeches about the writing standards in the American Bar. In fact, I would be surprised if Scalia, of whom I generally do not approve, has not made such a complaint. And there are probably law review articles pertaining to the question of how often a poorly written contract (poorly written in the narrow sense of containing substantively important grammatical ambiguities) leads to litigation. My guess: it's more common than you think or than Salt thinks.


The “precise context”, I’m guessing and extrapolating without going back over the whole thread, seems to have to do with the denigration of black vernacular English, what using it signifies culturally and socially, particular in comparison with standard English as illustrated in its use by professional and business people. Just a couple of thoughts I was going set out by way of post script even before I read your last post: clear thinking would demand distinguishing between written and spoken English in these comparisons and would demand distinguishing between descriptive accounts and evaluative accounts of language use. I sense neither distinction has been sufficiently drawn.Scalia. among other things, is quite the fuss budget over language use and in these respects is a barometer of nothing much at all except his own idiosyncracies.


I don't know whether you care about this, but if you're coming in late and saying that you don't have time or inclination to read the discussion, it's sort of insulting to then be told by you what clear thinking requires. Did I give you the impression that I thought I had written something with scientific merit about the black vernacular? I thought, to the contrary, that I was deferring to McWhorter, or to someone like him. But thanks for your input. Very enlightening.


So basman, I did a google search on "grammar lawyers." The first page of hits revealed these links:

This is just the tip of the iceberg. Without knowing what your precise judgment is about the level of grammatical competence among American lawyers, I'll wager that I am more right than you are about this, with or without testimony from Scalia.


Ledocs, don’t be insulted and no insult intended. I generally try to stay out of the insult business though, unlike the Pope, I am fallible. It was my impression starting with McWhorter himself, who I like a lot from what I have read of his books, journalistic writing, posting and appearances here, that he was not distinguishing sufficiently between descriptive and evaluative accounts of language use. I then got the impression from my recollection of the entire thread, which I read once a few days ago, that apples weren’t finding apples without considering the difference between written and spoken English.

I have seen the kinds of things you linked to all my professional life and they tell me nothing about the comparative grammatical competence of lawyers. I need to see the iceberg. More I need to see an iceberg that isn’t anecdotal or impressionistic but that has some methodology to it which allows for the drawing of reasonable conclusions. I don’t have a precise judgment about the grammatical competence of American lawyers. It’s a subject that until about 4 days ago I gave not a whit of thought to.

But from my too many years of dealing with Canadian lawyers—whose competence is probably roughly similar to that of American lawyers—I’d think North American lawyers’ grammatical competence is pretty good. I have no impression of lawyers' consistent bad writing be it manifest in poor grammar, bad syntax, poor use of language or other hallmarks of bad writing. I have some basis for judgment because I taught first year university English literature and composition for two years, albeit also too many years ago.So for your bet, let me make you a logically prior bet: that you cannot establish a reasonable basis for determining your bet.

Finally, if your tongue was not in your cheek—I’m not sure—then you are welcome. And if it was in your cheek, then you are welcome.


I think I could construct "a reasonable basis" that would not meet the standards of social science. If you're saying that I probably can't get the raw data to do a regression analysis, and that it would be difficult even to specify the dependent variable, that's probably correct.

What about my idea of trying to do a statistical analysis of numbers of cases reaching litigation due to poorly drafted contracts, where "poorly drafted" means containing grammatical ambiguities? Maybe the American Bar Association has data on this. How much anecdotal evidence would I have to collect to the effect that the grammatical competence of American lawyers is not very high, on average, in order to convince you? Would any amount of anecdotal evidence convince you, or do I need a statistical study using recognized social scientific procedures?

I don't know enough about you to know if you're arguing in good faith about this. I would not assume that the Canadian case is that similar to the American case. A cursory look at perhaps unreliable stats on the Net indicates that there are roughly four times as many lawyers per capita in the US as in Canada. This is a strong indication to me that standards are higher in Canada. The US has a lot of pretty shitty law schools, but you may not be aware of that. Better law school means higher SAT and LSAT scores for people admitted, which in turn probably means better training in grammar and generally more literate students.


Ledocs I can tell you that I’m trying to have a bona fide discussion with you.

I wouldn’t want you to go to a lot of trouble unless you wanted to but in any event just conceptually isn’t there a problem with analyzing the number of cases going to court—or to be fair to your argument, leading to disputes even shy of going to court— based on poorly drafted contracts—let alone boiling “poorly drafted” down to grammatical error? Amongst other problems, you would have to identify them and then measure them against contracts drawn in some agreed upon frame of time in some agreed upon place, and there would have to be refinement of which contracts comprised the universe of contracts the disputed ones would be measured against. I can’t imagine how practically you would do all that.

And on a different point, without launching you into some quixotic enterprise, how would you go about collecting anecdotal evidence? And in that collection would you not run into the same problems that seem to attend your idea of a statistical analysis?

I am impressed by your data indicating there are per capita 4 times as many American lawyers as Canadian lawyers. I might have guessed there were more American lawyers per capita than Canadian ones, but not on an order of 4 to 1. What stats did you look at? I’m not asking that to challenge you but out of interest. That 4 to 1 ratio cuts against my inclination to judge the writing competence of American lawyers on the basis of my impression of the writing competence of Canadian lawyers, but doesn't, I don’t think, do anything else for or against what you are arguing for.

I think the real points that emerge from all this, and I what I’d argue, are the inability credibly to test the assertion that American lawyers have poor command of English grammar or even to formulate that assertion in a way that makes practical sense.


Yes, there is a problem if you're going to be stubborn and obtuse about it, even in theory, otherwise not. I'm saying that maybe someone, the ABA for example, a law professor writing a law review article, a judge who is fed up, has already done the analytical work of saying that a grammatical ambiguity led to a dispute. I'm not going to be making that judgment. We're just talking about ground-rules, whether it is theoretically possible for me to persuade you of something. If you want to control for time constraints in the drafting of offending contracts, yes, that would probably create an insuperable problem.

Anyway, I think you are correct in thinking that I could not persuade you that there are widespread deficiencies in the command of English grammar by American lawyers. I don't think it's theoretically possible for me to persuade you. It strikes me that if all the American lawyers could be subjected to a standardized grammar test, you would not accept the results of that as probative either, because some of them would be nervous, there would be problems with the design of the test, they would not be taking the test under exactly similar conditions, and so on.

So let's drop it.


If I'm going to be "stubborn and obtuse" about it, you say, and this is your thanks when I was being so gentle with you.

Kettles and pots, my man: when I demonstrate the irrefutable absurdity of your position, you get personal.

Let's drop it, you say.

You took the words right out of my mouth. But I pause to note your exit in the face of your inability to confront what I argued against you except, as noted, by insult.

See ya'.


The estimable basman said:


Kettles and pots, my man: when I demonstrate the irrefutable absurdity of your position, you get personal.

I don't think you've demonstrated very much here, except that I am easily frustrated. I asked if you would accept the testimony of third parties with some presumed expert knowledge of American law who had written about, or studied instances in which grammatical ambiguity in contracts had led to legal disputes. You did not reply, even to say, "It would depend, I might."

From this silence I inferred that my task would be Sisyphean. It does not follow from the fact that I am very unlikely to persuade you of the truth of "my position" because I cannot meet a certain burden of proof, yet to be specified, my position being that there is a widespread lack of grammatical competence in the American Bar, that the position is "irrefutably absurd."

But maybe this does follow for you, according to some criterion of falsifiability, so that would be good to know. Is there evidence short of "proof" by regression analysis (which might well also fall far short of proof for you, I don't know) that would lend my opinion plausibility for you, and can we specify in advance what kind of evidence that would be?

Ledocs: (last word)

Hey, basman, you posted on your personal blog, in a misleading way, excerpts of things you and I said in this topic. as of 14:35, Monday, January 18, 2010, Paris time).

First, you make it appear on your blog that things I said to salt were said to you. That’s sort of dishonest. I say “sort of,” because I don’t really care that much, it’s all more or less anonymous and unsourced, you quote me accurately, but still, I wasn’t talking to you when I said what you quote. It does not look good to say to an attorney that the attorney has little or no experience in reading contracts.

Perhaps you therefore think that any reader will gather from what I say that I could not have been talking to you. And this is all not unrelated to my prior complaint that you entered the present discussion late and ignored the “precise context” of my remarks. The “precise context” includes a tacit explanation of why I used the word “absurd” in the words of mine that you cite.

It’s because I was offended by salt’s posts. That is, your out-of-context citation of me makes me appear even more hyperbolic and hot-headed than I actually am. It also occurs to me that there was no reason to attribute the remarks of mine that you cite on your personal blog to "ledocs," because that name is now associated with lots of things that apply to me on the Internet.

You could have given me real anonymity, and chose not to. Second, you don’t make it clear on your blog that my remarks were entirely about American attorneys. I don’t have “a position” about Canadian attorneys, because you are the first one with whom I’ve had any serious contact. A careful reader might understand this, but it could or should be made clearer. You don’t mention the subsequent point I made about the much greater number of attorneys per capita in the US, as compared with Canada.

Since you are, in fact, a Canadian attorney (as I have only now discovered), it might behoove you to look into that matter and see if there might be something to my suspicion that grammatical standards are higher in the Canadian legal profession because that profession is more selective than the American one. I don’t think I would have done anything analogous to what you have just done on my own blog. It strikes me as slightly unethical. You could have asked me for permission to cite me, out of context, in that way.

I will say that you come out of that exchange that never happened looking pretty good on your blog. What you say in reply to me is well written and pretty cogent, a lot better than your anti-Holder rants in your profile on this site, rants which are not very well written. It's not entirely clear there what you're so worked up about. Since I see that you can write well, I respectfully suggest to you that you clean up your user profile on this site. Anyway, I don’t want to make a federal case out of this, as we say in the US. But it does seem a little weird to me, what you’ve done.

If I were going to cite someone in that way, without his permission, on my blog, I would have prefaced the citation with something to clarify the context, like, “In the context of defending the relative sophistication of the grammar implicit in the American black vernacular, as compared with his interlocutor’s invocation of the higher grammatical standards of American attorneys writing contracts in standard English, a poster on a forum I visit said the following.” In fact, if you would add that prefatory sentence, I would appreciate it. I wrote it, and I approve it, cumbersome though it is

Saturday, January 16, 2010

Lawyers Writing


...Let's take a class of people I do know something about -- lawyers. Your idea that lawyers write good standard English is, I am afraid, quite incorrect. Sure, there are some lawyers who have a very good command of English, but I don't have the impression that it's even the majority of lawyers. And the idea that one can count on a contract that avoids grammatical ambiguity by relying on the American professional class is absurd. This statement of yours makes me think that (i) either you have virtually no experience here, or, perhaps more likely (ii) your own standards as to what constitutes command of English grammar are not particularly high. I spent close to twenty years reading real estate contracts..


I’d think, though I don’t empirically know, that amongst professionals, lawyers have a comparatively good command of English. That command is after all a crucial tool of their trade.

I don’t think the idea that we can, and do, count on professionals, namely lawyers, to avoid ambiguity in contracts is absurd. In fact, rather than being absurd, the idea is a truism, and is self evidently true. That’s so for a number of reasons that you don’t sufficiently separate.

One reason for that self evident truth—one not so much concerned with writerliness—is precedent, the legally established meaning of contract language over time. Generally, lawyers by education and experience will be competent in those received meanings and the untrained will not be.

Another reason, more concerned with writerliness but not essentially concerned with it, is the contract writing lawyer’s necessary and self conscious concern with clarity and precision. The burden of the drafter is to try to ensure those qualities. So he will want to ask himself: does this formulation address the problem; is it clear; can it made be made clearer; are there logical holes in it; and so on. As someone above suggested, the need to be clear and precise may be in tension with elegant writing, but elegance in these matters is secondary.

Finally, though without exhausting the subject, you are making the mistake in arguing for the idea's absurdity, to use the cliché, of making the prefect the enemy of the good. That language is plastic and hence malleable and unruly in its meanings does not obviate the truism that consumers in fact do rely on lawyers for clarity and precision in the drafting of contracts, just the way the ill depend on doctors for diagnoses. Errors and imperfections do not counter argue lawyers’ comparative competence in their contract drafting, the comparison being with non lawyers drafting contracts, which, under their untrained hands, usually turn out to be unholy messes.