In Seeing Things as They Are (OUP, 2015)
John R Searle gives idealism a long-deserved slap. “There
is something tragic about the massive waste of time involved in the whole
tradition of idealism.” (P 93, footnote 10, if my Kindle app pagination
is accurate.)
Idealism is
that philosophy which claims that the only things we have perceptual access to
are our own subjective experiences: all we can ever perceive are our own
subjective impressions and ideas (Descartes, Berkeley, Hume), we can never have
knowledge of things in themselves (Kant), we can only perceive sense data
(Ayer). Searle’s position is that idealism leaves us with essentially an
unbelievable conception of our relation to the world (p 231).
I am not able
to review the book, [Update: here is a review by Josh Armstrong in the LA Review of Books.] but you may wish to view this YouTube clip of a
seminar conducted by Searle which substantially overlaps the subject-matter of
this book and gives a sense of the technical language generated by
philosophical contemplation of perception.
Searle makes
an interesting observation about El Greco and whether the painter had defective
vision (p 141):
“The hypothesis ... that he painted distorted figures because a
normal stimulus looks distorted to him makes no sense, because if he is
reproducing on the canvas what produces distortions in him, then he will simply
reproduce what looks normal to the rest of us.”
This has
implications not mentioned by Searle but which will occur to lawyers. Would El
Greco have described in words an obviously distorted image? Are errors in one
mode of perception only apparent to other people when translated into a
different mode of communication? If a witness describes what was seen, will
that description necessarily correspond to the witness’s visual perception? How
should a verbal description of what was seen be checked?
Judicial
accounts of how facts are determined give no assurance of their correspondence
with reality. As EW Thomas observes in The
Judicial Process (CUP, 2005) at p 321, “The facts are the fount of
individual justice” but there is scope for improvement in the ways they are
determined. For example, there is too much weight placed on the demeanour of
witnesses (324), and truth, as far as the system will permit “can be gleaned from a close reading of the contemporaneous
documentation, if any, or an analysis of the probabilities intrinsic to the
circumstances and about which there may be little or no dispute” (325).
As a senior appellate judge, Thomas cautions that
“what judges must not do is fill an unresolvable gap with a
judicial ‘hunch’. To do so is to succumb in part to what I have perhaps
unkindly labelled the ‘God Syndrome’. Anecdotal evidence suggests that the God
Syndrome settles on some judges shortly after their appointment to the Bench
... [and] many appellate judgments would be edified if judges at that level did
not show an unhealthy preparedness to adopt a version of the facts which cannot
be found in the [trial] judge’s findings of fact or in the transcript of the
evidence itself. ... The God Syndrome does not strike at first instance only.” (326)
The resort to
assessment of probabilities to assist in determining facts is also referred to
by Richard A Posner in How Judges Think
(Harvard UP, 2008). He uses (65) Bayesian decision theory to illustrate how,
before a witness even testifies, a judge will have formed an estimate that the
testimony will be truthful, based on experience with witnesses in similar cases
(including when the judge was a lawyer), on a general sense of the honesty of
the class of persons to which the witness belongs, or even the way in which the
witness enters court and approaches the witness box. It would, says Posner
(67), be irrational for judges to purge themselves of this way of thinking.
And the
sneakiness of some appellate judges does not escape Posner’s comment (144):
“ Appellate judges in
our system often can conceal the role of personal preferences in their
decisions by stating the facts selectively, so that the outcome seems to follow
from them inevitably, or by taking liberties with precedents.”
(I mention in
passing – just to show that some judges do read each other’s books - that at
261 footnote 63 Posner cites Thomas’s book.)
Posner had
also discussed the difficulties of ascertaining, from evidence given in the
courtroom, the reality of what happened, in The
Problems of Jurisprudence (Harvard UP, 1990), particularly at 203-219. He adds
(217):
“The celebration by lawyers and judges of the “fairness” of a
system in which it is thought better to acquit ten guilty defendants than to
convict one innocent defendant is an attempt to put a good face on what is
actually a confession of systemic ineptitude in deciding questions of guilt and
innocence.”
Ah yes, there’s
nothing like a little philosophy to make you have doubts about everything
(except your existence).
