John, (01)
> On 6/6/2013 10:38 AM, Barkmeyer, Edward J wrote:
> > Can you really not distinguish between:
> > Drivers stay on their side of the centerline And
> > If a driver does not stay on his side of the centerline,
> > he is prosecuted for reckless driving.
> > ?
>
> Those are two very different statements. The first is a simple declarative
> sentence, which may be true or false. That is not a statement of a law.
>
> But the second is an implication. As Justice Oliver Wendell Holmes Jr would
> say, that implication is the meaning of a law that says "Drivers shall stay on
> their side of the center line." The modal word 'shall'
> or 'must' is critical to stating a law. (02)
Indeed! Which is why that implication is not at all the same thing as the law.
It is also a statement which may be either true or false.
As Doug Foxvog pointed out, the difference is that the implication may be, and
is in fact most likely to be, false. Assuming that the "a driver" is taken to
be a universal quantifier, it only requires one counterexample to falsify it.
The law is not equivalent to the implication. (03)
> As I said, I completely agree with you that the essential meaning of a law of
> science is its predictions about what would happen under certain
> circumstances.
>
> And I completely agree with OWH that the essential meaning of a law of any
> legislature is a prediction about what would happen under certain
> circumstances. If you don't agree with that point, please quote any point
> OWH made that you disagree with:
>
> http://constitution.org/lrev/owh/path_law.htm (04)
I disagree that OWH intended his wisdom in this area to be cast as formal
logic, whereas Isaac Newton did!
And quite frankly, I don't believe that the intent of a law of any legislature
is a "prediction of what would happen under certain circumstances". It is
rather a directive to the populace not to PRODUCE those circumstances. That is
the meaning of "must"! It makes those who do produce those circumstances
ELIGIBLE for punishment under the law. It does not, in fact, predict that
punishment at all. The law only makes clear that the society will not ignore
or tolerate that behavior, IF it is observed, and may take action against the
perpetrator. (05)
Holmes' predictions are conditional upon the violation being observed and the
law being enforced. And unless those conditions are stated in the implication,
the implication is logically false! By comparison, Newton's laws are not
conditional on observation or on the decisions of an "officer of the laws of
nature". If a tree falls in the forest, it does produce shock waves, whether
any one is there to sense them or not. That is not necessarily true of illegal
activities. Punishment is only possible when someone observes the shock waves. (06)
(The fact that Newton's laws are inadequate and inaccurate for atomic physics
is a different problem. Newton's model is oversimplified for the nanoscale,
and its predictions are inaccurate for that application. But Holmes'
prediction is, on its face, inaccurate on the scale of its intended
application! And that is why I don't believe that Justice Holmes intended his
aphorism to be interpreted formally.) (07)
> EJB
> > but then Chief Justice Holmes probably had rather more significant
> > laws in mind [than traffic violations].
>
> Please read what he said. Another quotation from the same article:
>
> OWH
> > A man who cares nothing for an ethical rule which is believed and
> > practised by his neighbors is likely nevertheless to care a good deal
> > to avoid being made to pay money, and will want to keep out of jail if he
> > can.
>
> OWH was talking about penalties like fines and jail time. That shows that he
> had rather mundane laws in mind -- which would include traffic violations. (08)
Yes, I was wrong. He did have traffic laws in mind. And we have all seen
drivers behave in exactly that way, slowing down dramatically when they are
about to pass a police car. But they were up to that point violating the law;
they are only taking care to avoid having the violation OBSERVED. It is only
the observation of the violation that leads to potential punishment. That
behavior does not make the formal "prophetic" implication true. In fact,
human nature being flawed, the law will often predict exactly that kind of
behavior -- the conduct of unlawful activity coupled with an effort to conceal
it. (09)
> Note the following point, which applies to every sort of penalty, ranging from
> a fine to capital punishment:
>
> OWH
> > if we take the view of our friend the bad man we shall find that he
> > does not care two straws for the axioms or deductions, but that he
> > does want to know what the Massachusetts or English courts are likely
> > to do in fact. I am much of this mind. The prophecies of what the
> > courts will do in fact, and nothing more pretentious, are what I mean by the
> > law. (010)
Ah well. I think we can all agree that the real "law of the land" is that
which is enforced by the courts. But that definition makes many traffic "laws"
some other category of "statements of guidance". (011)
> That statement with a suitable change of terminology would apply just as
> well to any and every law of science: "The prophecies of what will happen in
> any particular experiment, and nothing more pretentious, are what is meant
> by a law of science." (012)
I completely agree. Newton's Laws do prophesy what will happen in any
particular experiment. But I can assure you that the laws of Maryland do not
in fact prophesy the behavior of any particular driver on Interstate 270. And
I would not be alive today if I were fool enough to make any such assumption,
because in the event of certain violations I have observed, I would be unable
to violate Newton's laws. (013)
-Ed (014)
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