A Latinist, an Intel analyst, and a Chatbot walk into a bar

 

dj] Trace the use of "Principiis intelligendi obsta".

 

AI]  "Principiis intelligendi obsta" a playful or philosophical modification of "Principiis obsta"  “Nip it in the bud";

Today, Principiis obsta is widely used as a legal maxim meaning to stop minor violations, political overreaches, or bad habits early before they become dangerous precedents.

 

dj] > legal maxim

Cf. “broken-windows policing”  (which itself is contradicted by another Latin maxim “de minimis non curat lex”).

 

The full phrase "Principiis intelligendi obsta" -- upon your evidence, a modern coinage -- occurred, as I recall, apud Theodor Reik:  Don’t suppose you understand (a patient/dream-interpretation/etc) right at first blush: dig deeper.  Or, proverbially:  “Don’t jump to conclusions”.

The same maxim, though not in that wording, applies as well to physics, where some phenomena receive an initial/plausible/good-enough-for-government-work explanation, which then can slip imperceptibly into received wisdom;  until, perhaps decades later, a more genuine explanation is discovered using new techniques (quantum theory; homology theory; ….)

 

AI] Your recollection strikes right at the heart of the psychoanalytic ethos. Theodor Reik—and indeed Freud himself—frequently warned against the analyst's temptation to understand too quickly. In clinical practice, an immediate, plausible interpretation often acts as a resistance (Widerstand) or a defense mechanism for the analyst, closing off the deeper, unconscious currents of the patient's material before they can truly emerge. By "resisting the beginnings of understanding," the investigator forces a state of productive confusion or suspended judgment, ensuring the deeper structure isn't obscured by a neat surface narrative.

 

dj]  Idiomatic/proverbial equivalents to “Nip it in the bud" and “Don’t jump to conclusions”, in (a) French (b) German.

 

AI] Étouffer dans l'œuf

Couper l'herbe sous le pied -- Closer to "cut the ground out from under someone," but used to thwart an action early.

 

Im Keim ersticken

Wehre den Anfängen! This is the exact, direct translation of Ovid's classical Latin maxim (Principiis obsta).

 

dj] Note, btw, that, epistemologically, “Nip it in the bud”/ "Principiis obsta"  advises the *opposite *  of "Principiis intelligendi obsta"/”Don’t jump to conclusions”.  The latter advises observant patience (cf. Freud’s “gleichschwebende Aufmerksamkeit”): *let that bud bloom *, and see what sort of plant grows out of it.

A similar dichotomy occurs between local law-enforcement vs the intelligence community.  As, X commits an infraction, observed in flagrante delicto.  The default policy trifurcates according to the legal authority:

 

Cop on the beat:  Book ‘im!

FBI agent:  Shh, hold on -- Who is X working for?  (Then arraign the bunch.)

SIGINT mavens:  Hmm, let’s see if X has any links (one, or two hops out) to  extant target-circles, and cross-check with Analyst Notebook; then expand the SIGINT target set accordingly, and then,  looping back  …. (usw, till the heat-death of the universe).

 

Actually that reads like a perfect set-up for a joke: 

“A cop, a Special Agent, and a SIGINTer walk into a bar…”

 

And, meta-actually, *that * joke-scenario (like all those A/B/C bar-jokes) can trifurcate further, according to whether the type  of humor accords with the world-view of A,B, or C -- usually some one of them comes  out the ‘winner’.

 

Try it if you like.

 

 

AI] Version A: The Cop’s Worldview (The Triumph of Common Sense)

 

A local beat cop, an FBI Special Agent, and a SIGINT analyst walk into a bar.

They sit down, and after a few minutes, a unruly patron at the end of the counter stands up, smashes a beer bottle, and starts screaming threats at the bartender.

The FBI agent immediately pulls out a wire notebook, slides into the booth behind the guy, and whispers into his collar, "Hold on, let's see who he calls next. He might be part of an interstate racketeering ring."

The SIGINT analyst pulls out a hardened tablet, starts mapping the bar’s Wi-Fi network, and mutters, "Wait, let me cross-examine the MAC address of his phone. If we trace his metadata three hops out, we can map the entire logistics chain of the brewery that supplied the bottle."

Meanwhile, the guy swings the broken bottle at the bartender.

The cop sighs, walks over, hits the guy over the head with a nightstick, and cuffs him. He walks back to the bar, finishes his draft beer, and looks at the other two. "While you guys were waiting for the heat-death of the universe, I just saved the bartender. Next round is on you."

 

Version B: The FBI Agent’s Worldview (The Triumph of the Syndicate Bust)

 

A local beat cop, an FBI Special Agent, and a SIGINT analyst walk into a bar.

They notice the bartender is acting nervous, slipping a small white envelope into the coat pocket of a man in a sharp suit.

The cop immediately reaches for his handcuffs. "In flagrante! I’m booking him for a hand-to-hand transaction right now."

The FBI agent grabs the cop's arm. "Hold your horses, rookie. If you bust him now, you get a misdemeanor. Let him walk."

The SIGINT analyst looks up from his screen. "Actually, I’m already intercepting the encrypted RF pings from the courier's key fob. If we monitor the signal attenuation over the next six months, we can build a predictive model of..."

The FBI agent ignores them both. He trails the courier out the door, follows him to a warehouse, documents the meeting with the regional cartel boss, wires a confidential informant, and three weeks later executes a multi-state, 40-defendant RICO indictment that makes the front page of the New York Times.

Back at the bar, the Agent raises a glass to the cop. "That's how you clear a ledger, son. You don't just swat the wasp; you dig up the nest."

 

Version C: The SIGINTer's Worldview (The Infinite Loop of Total Information)

A local beat cop, an FBI Special Agent, and a SIGINT analyst walk into a bar.

The cop says, "Hey, look at that guy in the corner booth. He just slipped a thumb drive to that woman."

The FBI agent's eyes light up. "A dead drop! Let’s tail her, find the safehouse, and arrain the whole cell on conspiracy charges."

They turn to the SIGINT analyst, who is staring placidly at a flashing terminal screen, completely unfazed.

"Don't bother," the analyst says, taking a slow sip of his drink. "We've been spoofing that exact thumb drive's firmware since 2018. The woman is a triple-agent we spun up through a front company in Cyprus to feed disinformation to a targeting cell in Murmansk. By analyzing the time-delay in her uploads, we've successfully mapped the social graph of the entire foreign ministry, which we are currently cross-referencing with a geostationary SIGINT sweep of their defense attachés."

The cop and the FBI agent stare at him, bewildered. "So... when do we arrest them?"

The analyst looks at them with genuine pity. "Arrest them? Why would we ever stop the data flow? If we arrest them, they'll just change their protocols, and I'd have to rewrite the entire Analyst's Notebook schema. Drink your beer. The system is working perfectly."

 

dbj]  Kudos on a triplex trifecta!

 

 

 

Leading Questions

We earlier analyzed, and fulminated against, self-posed phony questions; handing out “Greatness” kudos to banal questions (and then dodging them); and the crypto-injunctive “Thank you for…” gambit. 

Thinking along those lines, I noticed something similar on this morning’s “Weekend Edition” on NPR, concerning a recent appropriation bill for the pandemic:

   Some of that is earmarked for testing -- yes?

The questioner was Scott Simon, and the question was posed to an area-expert on the ground, as one of a list of items to be got through.   It came across as time-saving and businesslike, but strictly speaking, as opposed to a neutral “Is some of that earmarked for testing?”, it is what is eristically called a leading question.   That technical term does not mean “a burning question” (nor, for that matter, a “great question”), but refers to the judicially deprecated practice of leading the witness.

* Structurally, considered as an illocution, Simon’s utterance is roughly the dual of the “Rumsfeld ploy”. 

In Rumsfeld, what is in essence a statement  is separated into two clauses:  an initial clause containing the actual content, and phrased as an interrogative; followed by a very brief clause, phrased as a declarative (and addressing the question).  

In the Scott Simon gambit, what is in essence a question  is separated into two clauses:  an initial contentful clause framed as a declarative; followed by a very brief clause, phrased as an interrogative.

*  Rhetorically, considered from a perlocutionary standpoint, the move resembles the “Thank you for…” in that it cogs the dice to elicit a desired behaviour (compliance or assent).

On a scale from most neutral, to most bullying of the witness, we note:

*  Did you take the money?

*  Didn’t you take the money?

*  You took the money -- yes?

*  You took the money, didn’t you?  (with an interrogative up-tone on the final clause)

*  You took the money, didn’t you (with flat declarative intonation on the final clause).   And, on a strengthened prosecutorial note:

* You took the money, now didn’t you.

There are side-subtleties, which we shall ignore, except to contrast

   * You took the money, didn’t you?  (Assumes that you did, and purports not to expect you to dare deny it.

  * (Oh, so) you took the money, did you?  (Affects surprise at a suggestion that you did.)

The latter contrasting pair recall the Latin interrogative particles   nonne (expecting a positive answer) and num (expecting a negative).

“Refutation” inflation (re-updated)

[The present note is an exercise in logic and linguistic hygiene.  It is not political per se, and in particular is agnostic as to the facts and merits of the tangled case under discussion.]

[Original post-date 16 May 2017]
One of the top stories in today’s crowded news:

The family of slain Democratic National Committee staffer Seth Rich rejected Fox News reports that he had leaked work e-mails to WikiLeaks before he was fatally shot last year in the District.

The reports, which gained traction on social media, said an FBI forensics examination showed Rich transferred 44,053 DNC e-mails and 17,761 attachments to a now-deceased WikiLeaks director.

Rich’s parents, Joel and Mary Ann, said Tuesday through a spokesman that they do not believe their son gave any information to WikiLeaks.

https://www.washingtonpost.com/local/public-safety/family-of-slain-seth-rich-says-reports-he-fed-wikileaks-dnc-info-are-untrue/2017/05/16/9b32ef9c-3a46-11e7-8854-21f359183e8c_story.html?utm_term=.f0f43ca07a0f

That is admirably and neutrally stated.  However, some news sources are reporting the same facts with headlines like “Seth Rich Parents Refute New Claims On Wikileaks Contact”.   Therein lies a confusion.

To refute is (in its original, non-catachrestic sense) to disprove.  The allegations in question are perfectly precise and emprical, subject to either (partial) refutation or (partial) confirmation.

But the only party in a position to refute the allegations is someone who professionally and forensically examined the laptop in question.    Does it contain such material, or does it not?  The family is in no position to “refute” the allegation, however false it may be.  Indeed, on the Post account, they cannot really be said even to have denied the allegations;  they simply said they don’t believe them.  A perfectly rational stance; but not exactly a denial (for after all, how would they know -- if their son had been secretly betraying his employer, why would he inform his family?), and certainly not a refutation.

Increasingly, the less careful media uses refute where deny would be appropriate.  Part of this may be simple semantic weakness on the journalists’ part (to which many other technical terms, like impeach, are subject), but partly also to the fact that deny has accumulated invidious connotations, as though anyone who “denies” X  is himself shady in some way.   That is a legitimate worry;  other synonyms are available (the family discounted/pooh-poohed/scoffed at/… the allegations) which lack such connotations.  Better to use these than to induce a crucial ambiguity in the verb refute, in a way that renders it inapt for precise usage.

Part of the problem in the fluidity of use of refute  might be  not political, but cognitive and linguistic:  confusion with the paronym rebut.  A rebuttal is not quite as decisive as a refutation, but supposed to be more evidential and structured than a mere denial.  Mere denial is a weak defense indeed, available even to the ghosts of five-year-olds, as in the comic strip "The Family Circus".

A further semantic distinction:  re discussions within the first Nixon administration, of Kevin Phillips’ The Emerging Republican Majority:

Phillips had not been refuted by the West Wing,  but his thesis had been rejected.
--  Patrick Buchanan,  Nixon’s White House Wars (2017), p. 146

Note:  There are other ways of disposing of an allegation, other than outright refutation:  you may undermine, or infirm, or discredit it, in various ways.   Thus, if a witness presenting himself as Dr. Smith (M.D. Harvard) testifies that the deceased died of psoriasis, another doctor (or team thereof) might refute that testimony (on its own ground) by presenting evidence that the deceased had a huge malignant brain tumor but had never had a skin condition.  But anyone -- say, a lowly clerk at Harvard Medical School -- could discredit the testimony on entirely other grounds, by showing that Smith never attended Harvard Medical School, nor (with a bit of extra digging) ever so much as finished high school.  That would be devastating counter-evidence, but not a “refutation” in the technical sense.  (Logically, Smith might nonetheless have blundered upon the correct explanation of the demise.)

One can’t help suspecting that the media’s terminological laxity might be connected to an epistemological weakness:  presenting counter-allegations as evidentially telling (whether or not they are actually awarded the accolade “refutation”) although (consider the source) they are suspect or undermined at the outset, as coming from the accused's family, or attorney, or partner in crime.  Some of these are treated with great journalistic reverence, and actually pass into folklore  --  "he didn't do nuttin' " (spoken while the perp is actually in flagrante), or, post-hoc, “he didn’t have a gun” (though one was found in his possession, surrounded by spent cartridges), and where all else fails and guilt is  ... irrefutable, “he was hoping to go to college”, “he was starting to turn his life around”.

[Update 17 August 2017]  Bringing it back to Wikileaks:

Assange once told me that he did not “accept” the allegation that Russia had provided him e-mails through a third party,  which of course was different from saying that the allegation was untrue.

-- Raffi Khatchadourian, in 21 Aug 2017 The New Yorker]

But nor did he make any move to refute or cast doubt on the allegation:

I asked if he was even able to know the chain of custody of his election material before it came to him.  He declined to answer.

[Side-note:  for that phrase of forensic science chain of custody,  cf. the term of hadith stemmatology,  isnâd.]

~

A particularly piquant use of the term “refutation” occurs in the mathematical polylogue by Imre Lakatos, Proofs and Refutations (1976).  The title impishly echoes that of Karl Popper’s better-known Conjectures and Refutations (1962).  But whereas that title reflected the expection rough-and-tumble of normal science, Lakotos’ phrase produces a double-take:  if a “proof” gets “refuted”, it wasn’t really a proof to begin with, but only a purported proof.  But Lakatos is not referring to those (relatively rare) instances of purported proofs that turned out to be fatally flawed, and left no progeny in mathematics.  Rather, he considers mathematical demonstrations that were all right so far as they went, but which contained hidden assumptions.  These being unearthed in a “refutation”, the original proof, or something much like it, gets deepened, until further unsuspected subtleties become revealed.    He offers a dialectic analysis of the process of mathematizing.   The result does not demote mathematical truth to a mere just-so story, as among nihilists and relativists.  It rather offers a more epistemologically modest picture of the mathematical enterprise (the fallible human excavation of a transcendental reality, a Platonist would say), in which the notions of “proof” and “refutation” both get toned down a bit, and the process becomes a bit more like developing a software package, finding and fixing bugs along the way.  The result is real progress.

For a more technical discussion of refutation and its semantic field, try

http://worldofdrjustice.blogspot.com/2016/01/refutation-vs-disconfirmation.html

~

The flip side of the coin, by which the media use artificially strengthened language when presenting the allegations of the victim class and their attorneys, is artificial down-grading when the allegations come from the authorities.   As, a headline from a moment ago:

South San Francisco police officers on Wednesday morning shot and killed a man who they say was allegedly armed with a shotgun.

Either “they say” or “allegedly” would be an adequate and appropriate editorial distancing from the official police statement.   Together, they are at best redundant, or, if taken literally, false:  the police did not state “He was allegedly armed with a shotgun”;  such a statement would be in place if, say, the police had not actually seen the shotgun, but a bystander reported -- alleged -- such possession of a shotgun (which had  been abstracted from the crime scene by the time the police arrived).  

~

[Addendum] Further vocabulary.

In the following sophisticated example, the verb nullify is used, not in the sense ‘refute’ exactly, but ‘to render null and void’

-- not to prove the falsity of a statement, but to disable its presuppositions:

I turn now to the objection that, even if probability-scepticism does not nullify the concept of truth, it does nullify the idea that science should aspire after truth.

-- John Watkins, Science and Scepticism (1984), p. 162

Indeed, Lakotos’ impish use of refute is roughly the same idea.

~

A bonus from Classical Antiquity:

Pericles, also, was a hearer of Zeno, the Eleatic, who treated of natural philosophy  in the same manner as Parmenides did, but had also perfected himself in an art of his own, for refuting and silencing  opponents in argument;  as Timon of Phlius describes it --

Also the two-edged tongue  of mighty Zeno, who,

say what one would, could argue it untrue.

-- Plutarch’s Lives (Dryden’s translation)

The Three Powers

The impeachment struggle  has been a three-cornered contest, among the three branches of government.   Such a delicate triangular balance  is what keeps things interesting; a contest between but two  comes down to arm-wrestling, and is quickly settled, though maybe settled amiss.

Elizabethan times witnessed a similar struggle among a triad, with monarch corresponding to the Chief Executive, Parliament to the Congress, and the third, robed branch, the clergy, replaced now with the judiciary.

In Elizabeth’s time, the puritans had endeavoured to bring ecclesiastical grievances before the House of Commons;  this, the queen resented, as it seemed that the commons were endeavouring to go outside their province  and legislate on matters which could only be constitutionally dealt with by the clergy in convocation, and by the crown.  In this way, the religious question assumed a constitutional form.

-- Ward & Waller, eds. The Cambridge History of English Literature, vol. IV: North to Drayton (1909), p. 305

The parallels here are more than we would have expected, right down to the detail about the “puritans”, neatly re-incarnated in our own day  by the Woke brigade.  And that of the monarch being a Queen -- like our POTUS, though he is  of the drama kind, and not of Tudor blood.

~

The motif of the “Trivet of Conflict” finds its supreme cinematic embodiment in the final scene-sequence of “The Good, the Bad, and the Ugly” -- not a circular firing-squad, but an equiangular shoot-out.   The act plays out, as ideally in the  Seventh Art, without words or sudden motion  till the fatal climax, silent but for the tinkling melody of an antique music-watch  winding down.  Here too, for our own amusement (or that of the blog-observing gods) we may match personages across the spheres:  here,  Good (a.k.a. Blondie) is the Supreme Court (granted, partisans carp at decisions that do not go their favorite way, but that branch is surely the most dignified and even relatively impartial);  Bad  is our naughty POTUS;  and Ugly -- who could that be, but our quarrelsome Congress.

To spare our readers further metaphor, we shall not be drawing comparisons between the branches as enumerated in the Constitution, and the Persons of the Trinity (as explicitly enumerated  nowhere in Scripture, but now held dear).

~

[Update 8 Feb 2020]  For any who deem the Elizabethan analogy  too ennobling for our present sticky pickle, look ye rather to that trio of Stooges, who, in simpler days, brought delight to tots and idlers.  Our pushful POTUS is perfectly cast  as Moe.

[Update 9 Feb]  What sketch of the American polity, with any pretentions to, well, pretentiousness, could be considered complete, without the obligatory obeissance to Tocqueville?  We must check the Tocqueville box.

The basic dynamic of the first two branches of government, whether monarch and parliament, or President and Congress, is a matter of politics and power.   It is the third, robed element, whether the Church or the Judiciary, that is less obvious: with goals and methods less tangible, more nearly timeless.

Historically, as the sway of the Church retreated from the secular sphere, in general  it was not replaced by another body.  America, it seems, was an exception:

Aucun peuple n’a constitué  un aussi grand pouvoir judiciaire  que les Américains.

Chez toutes les nations policées de l’Europe, le gouvernement a toujours montré une grande répugnance à laisser la justice ordinaire  trancher des questions qui l’intéresent lui-même. … A mesure, au contraire, que la liberté augmente, le cercle des attribtions des tribunaux  va toujours en s’élargissant.  …Chez les nations de l’Europe, les tribunaux n’ont que des pariculiers pour usticible;  mais on peut dire que la cour suprême des Etats-Unis  fait comparaître des souverains à sa barre.

-- Alexis de Tocqueville, De la démocratie en Amérique (1835), vol. I, p. 225-6

[Update]  To have three pre-eminent and even quasi-coequal powers within a polis, is inherently metastable and dramatic, and indeed has found its way into drama.  Cf. the Scottish poet David Lindsay’s morality-play A Pleasant Satire of the Three Estates (Ane Pleasant Satyre of the Thrie Estaitis, in contemporary spelling), 1552

[Update / Antedating]  The structural theme appears in a play of the sixteenth-century dramatist John Haywood.  "The climax to the triangular duel  which forms the main episode of The foure P.P.  is an effective piece of dramatic technique." 

(Ward & Waller, eds. The Cambridge History of English Literature, vol. V: The Drama to 1642, Part One (1910), p.95)

The Logic of Yea and Nay

The Senate has just shot itself in the foot;  with shrapnel ricocheting onto masses of bystanders.  The move might enter the annals as “Shumer’s Self-mate”.

In the face of such legislative absurdity, the Administration floated the idea of reducing the minimum to pass a Continuing Resolution  from 60%  to a bare majority.    Worth discussing;  but there is a more general logical point behind the whole debate, which seems to have garnered little or no notice in print.

The point is, across the board, the status quo is the default.   As the cock crows, the Senate (to take that as an example, but the point applies to any established body) begins its busy day with various activities.   Everyone shows up for work with teeth brushed and appropriately dressed (men as men, women as women);  there is some sort of opening ceremony (in my primary school, these were Flag Salute and Lord’s Prayer);  a roll-call is taken;  citizens are admitted to the visitors’ balcony; interviews are given to the press;  and so forth.   It would be legitimate to question any one of those activities:  require unisex attire; ban the prayer or the flag salute (some of this has already happened in this venue or that); skip the time-wasting roll-call; exclude spectators (for security, or whatever).  To do that, you introduce a bill, which for passage requires a majority of some weaker or stronger preponderance (say, 60%), depending on the nature of the proposed bill.   What is not required is that,  in order to continue to wear normal clothes, or salute the flag, or what have you, the body must, every morning as the cock crows, pass a brand-new bill (with the required 60%) to continue the status quo.   The burden is on those who would change or disrupt the status quo.

Now, allowing the government to continue putt-putting along, for better or worse, is simply the default, and should be so considered.  It’s the government’s job.   So it is truly not logical that Congress should be obliged to seek a super-majority, simply to keep the government open for business, fulfilling the promises made.    Anyone who would disrupt that scenario, at so fundamental a level, should be obliged to propose doing so, in a measure  -- say, the Government Shutdown Circular Firing-Squad bill -- that itself would require the supermajority.   Instead, the quite radical maneuvre of wrecking the government   is relieved of what should logically be its burden, as though that were the default.

[Update 22 Jan 2018]  The Washington Post today has a good article on the logical/structural parameters of such situations.

https://www.washingtonpost.com/news/worldviews/wp/2018/01/22/why-other-countries-dont-have-government-shutdowns-2/?hpid=hp_hp-top-table-main_wv-shutdown-1105am%3Ahomepage%2Fstory&utm_term=.a67ef5b32d8a

 

 

 

 

 

Meum et tuum (bis)

(I)  Mine and Thine

This morning I am, for my better edification, engaged in reading Roscoe Pound’s classic Introduction to the Philosophy of Law (1922; revised and augmented edition 1959).   It is rather dry; only a concurrent reading of Cozzens’ law-soaked novel  By Love Possessed (most gripping, precisely, in its legal passages) led me to once again  pick up this monograph.

In the penultimate chapter, Pound arrives at the question of Thine and Mine.  To get some clarity on this vexed subject, he begins with a clean desktop by doing what we all should do whenever tackling a difficult problem:  arranging the data into six convenient groups:

Theories by which men have sought to give a rational account of private property as a social and legal institution  may be arranged conveniently into six principal groups, each including many forms.  These groups may be called:

(1) Natural-law theories;

(2) Metaphysical theories;

(3) Historical theories;

(4) Positive theories;

(5) Psychological theories;  and

(6) Sociological theories.

-- (p. 114)

There!  And now (in the word’s of Portnoy’s psychoanalyst, at the end of the book) -- Now we can begin!

Our interest here lies chiefly in the metaphysical theories, which began with Kant.  And Kant began with this:

He begins with the inviolability of the individual human personality. A thing is rightfully mine, he says, when I am so connected with it  that anyone who uses it without my consent  does me an injury.

-- (p. 117)

Ordinarily, philosophical argument is supposed to start with what is self-evident, or at least colorable, and to proceed by ever-cleverer reasoning  to some conclusion  the path to which was not initially plain.  Yet here we find ourselves in quicksand, before the journey is quite begun.

For  consider:

Little Timmy is playing happily with his new toy dinosaur, bought for him by his grandmother the day before.  Along comes Tommy and seizes the object by main force.  Timmy is dismayed, his playtime ruined; tears  well in his eyes.

But now consider Tommy, happily at play with his newfound fun dinosaur.  Let Timmy, or Bobby, or anyone else, come along and likewise appropriate the coveted item, and -- now Tommy is dismayed, his playtime in tatters; salt tears  sting his eyes.

The only way we might distinguish between the sense of grievance of the two boys, is in light of some antecedent theory of ownership  and notions of justice attached thereto, held by one or both boys:  quod erat demonstrandum, sed demonstratum non est.

That, alas, is an actual incident, from America’s tragic past.  Here, ladies and gentlemen of the jury, are the facts (David v. The Cruel World, 1955):

~ The Case of the Purloined Dinosaur ~

I was not quite five years old, temporarily living with my maternal grandmother  in Garden City, Long Island, while my parents, having moved from Tennessee, were off house-hunting in New Jersey.  In the course of a visit to the Museum of Natural History (fondly recalled here) she had bought me a lovely little bronze statuette of a brontosaurus;  I had few or no toys dating from the time of our rather exiguous existence in Oak Ridge, and this brontosaurus  was by far my most precious possession.

I was outdoors alone, playing with this wondrous toy, when along came a neighborhood boy and, liking what he saw, calmly possessed himself of the animal and began walking home.  Stunned at this calamity, I trailed along after him, alternately remonstrating, threatening replevin or trover, and expostulating, citing seriatim the old Roman (“natural law”) theories of possession, along with the metaphysical, the historical, the positive, the psychological, and the sociological -- finally adducing canon law and the opinions of the early Church fathers concerning matters of tortious conversion -- or would have, had I heard of any of that.   He merely shrugged -- then trumped me, with a legal axiom of his own -- and one which stood irrefutable, as it rhymed:

~  Finders keepers,  losers weepers ~

That adage took me aback.  I was amazed that the world here below should be so ill-ordered, but such apparently was the case.

Later that day, I appealed to the local areopagus, in the form of my grandmother -- herself the daughter of a clergyman, and pretty clear on matters of right and wrong.   She phoned the boy’s mother, who then tried to recover the object from her child’s well-stocked toybox;  but by then it had been lost and forgotten.

~

Had we each, I and that larcenous lad (who now, if he yet live, is even older than I am, if such a thing may be conceived) -- had we, I say, myself and that Barabbas rapscallion (prior to his eventual death in the monastery  whither he had  no doubt  latterly repaired, in penance of his depredations, dying finally in an odor of sanctity, his palms emblazoned with stigmata  in the shape of brontosaurs):  had we, say I, either of us, possessed a copy of Pound’s treatise (necessarily the original edition, since the second was not yet out) -- had the two of us sat down, like men of reason, and conned its pages  for guidance in our perplexity -- I might not (contrary to intuition) have been the gainer thereby.  

For in that work, does not the author refer to “the maxim possession vaut titre in continental law” (p. 128);  and does he not likewise allege, that

when one appropriates a thing, fundamentally he manifests  the majesty of his will  by demonstrating that external objects that have no wills  are not self-sufficient

(-- p. 120)

?

Our light-fingered adventurer might well take that as praise.

~

Already  I sense, you are reaching for your well-worn,  dog-eared,  espresso- or brandy-stained copy of The Common Law, by Mr. Oliver Wendell Holmes, Jr., Esq. (1881; which surely graces your night-table) for help in ascertaining what might lie aback of all of this.  To that work, therefore, we now repair.

Holmes’ tract is  if anything  even drier, even more nose-to-the-grounds-of-precedents (some quite ancient) than Pound’s.  Yet he claims to have his eyes as well on higher (or deeper) things:

The interest attaching to the theory of possession  does not stop with its practical importance in the body of English law.  The theory has fallen into the hands of the philosophers.

-- chapter “Possession”

And not merely  for their own abstract amusement;  for Pound goes on to declare the influence bidirectional:

Nowhere is the reciprocal action  of legal rules  and philosophical theories  more strikingly manifest  than in our law of contractual liability.

-- Pound, op. cit., p. 

Anyhow, readers hoping for sure philosophical guidance from Holmes’ book  might be disappointed.  As, consider the following hypothetical case:

A pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it. 

-- Holmes, op. cit., p. 222

(And, be it understood, made off with it;  that is not stated in the text, but apparently was the expected behavior of a shopper.)

Now, for fifty points -- answer this simple quiz from WDJ.  The appropriate holding would be:

(1) The purloiner of the pocket-book is a common thief, and should be prosecuted as such, regardless of whether he repents and returns the stolen item.

(2)  In the event that, unprompted, the purloiner  of his own accord  return the lost property to its owner, no charges should be lodged.

(3)  Screw the owner -- the perp gets to keep it, free and clear.

(4)  Actually the shopkeeper gets to appropriate the mislaid item.

(Pause for reflection;  then read on.)

If you answered (1) or (2), you are (according to Bridges v. Hawkesworth), a patsy, a loser.  “Finders keepers, losers weepers” rules -- the correct answer is (3):

Common-law judges and civilians would agree that the finder got possession first, and so could keep it  as against the shopkeeper.

-- id.

 

~

After that little Gedankenexperiment, we gloomily wonder why a table-sweeping fifth option was not added:

(5) Property is theft.  (La propriété, c'est le vol. -- Proudhon.)

And indeed, Roscoe Pound does cite that 18^th-century ideological Brandstifter  J-J Rousseau, to much that effect:

Rousseau held that the man who first laid out of plot of ground and said, “This is mine”, should have been lynched.

-- Pound, op cit., p. 119

To that we might merely observe that … he probably was.  As was any man who, outside the receptive and self-developing Greco-Roman-Christian current of history, presumed to invent or discover anything (or at best, he was ignored, and his find  died with him). “No such constitutional framework of contractual security as the Roman  was evolved by any other people in the ancient world.” --  Adda Bozeman, Politics and Culture in International History (1960), p. 201. (See also Lord Raglan, How Came Civilization.)

(II)  Adverse Possession

Apart from simply seizing someone else’s property and walking off with it, or invading it by main force, there is a subtler way of annexing the same, which can even cadge recognition by the law.   This trick is called:  Adverse Possession.

Thus, Princeton University owns a bit of woodland, containing a birdwatchers tower, to which access is unrestricted.  Yet one day a year, they bar the access-road and say No Trespassing:  this, lest their title lapse.  

So put, the phenomenon may appear a mere curiosity; but the phenomenon is spreading, as here and there  governments lose their backbone.  This, most strikingly in France, where certain immigrants -- illegal to begin with -- have occupied buildings and even private residence, the authorities seeming powerless to defend the rights of the owners.  Meanwhile the public becomes glumly accustomed  to ever-wider infringements with impunity.

Ogden Nash captured an earlier version  in a celebrated poem of 1938:

How courteous is the Japanese;
He always says, “Excuse it, please.”
He climbs into his neighbor’s garden,
And smiles, and says, “I beg your pardon”;
He bows and grins a friendly grin,
And calls his hungry family in;
He grins, and bows a friendly bow;
“So sorry, this my garden now.”

Such is the sociological landscape of bisounours Europe today;  the frog slowly cooking in the crock-pot;  le grand Remplacement.

(III)  Debts & Promises

The early Romans were serious about debt:

Defaulters (addicti) could be sold into slavery  or even put to death by their creditors.

-- H.H. Scullard, A History of the Roman World, 753 to 146 BC (1935; 4^th edn. 1980), p. 83

Durch das frührömische Kreditrecht in der Form des nexum  hatte der Kreditgeber faktisch ein Zugriffsrecht auf die person des Schuldners.

-- Karl Christ, Die Römer (2^nd edn. 1983), p. 20

That practice found an echo as far away as England, as late as the nineteenth century, in the institution of debtor’s prisons, so memorably depicted by Dickens (who, however, was not an impartial observer in this case).   That institution strikes any contemporary who first hears of it, as wacky (quite apart from the humanitarian aspects), since how can the fellow pay back his debt  if removed from the economy?   A historical view, however, reveals an institution that made sense in a certain social context -- near-universal throughout much of antiquity, and still in effect in many later cultures -- in which the familia, gens, phratry, tribe or what have you, was responsible for each of its members:  imprisoning the prisoner was more like sticking him in a pawnshop until redeemed.  It wasn’t punishment per se;  he simply served as the logical collateral.

[Gist of omitted section:  As is by now notorious, such severity towards debtors has not merely been largely relaxed, but the background culture of… honoring one’s debts  has in many areas collapsed disasterously -- and this, not only at the foot of the economic ladder, but at its tippy-top, the culture of Bain Capital:  a culture of reckless gambling, whose losses are made up by the taxpayer.]

If you live in a nation which disdains to enforce contracts, you can either just shrug and take it as a gamble, or do business elsewhere -- or no business at all, go off and cultivate newts or something.

Transposed to our boyhood memory  in the form of a parable, the scenario would be:

“Could I borrow that brontosaur for a second?”

“Uhh… Yeh sure.”

The boy takes it and walks off.

“Hey!  Give that back!  I didn’t give it to you -- you said ‘borrowed’.”

An indifferent shrug.  “So, I’m an insolvent debtor.”

An inner layer of the onion

The lead article in this morning’s New York Times  features a lengthy look-back on a scandalous story from March of 2015:  the mob-murder of a woman in Afghanistan, upon charges that she had just burned a Koran.    To publish such a follow-up is quite commendable, as so many complex events are misconceived during the initial period of their media notoriety.  At the time, the story was reported along the lines of:   Yes, she apparently burned one, who knows why, but she was already known as a lunatic, and should not have been held responsible for the act, let alone murdered. 

An investigation followed, and the paper today states:  “Farkhunda had not burned a Koran.”   An obviously crucial point (logically, legally), entirely independently of whatever further feelings or philosophy you might personally entertain (and, as usual, we are dealing here only with the logic of the case, not trying to push one opinion or another).  -- But why, then, (you will immediately wonder) had the mob set upon her?  -- Ah, wheels within wheels.

What is alleged to have happened is this: 

Farkhunda first visited the Shad-Do Shamshira shrine … It was a Wednesday, women’s day at the shrine, when men are not allowed.  The women commiserate about their lives.  They visit the fortuneteller to buy amulets to help them get pregnant, find a husband, or have male children.  Known as tawiz, the amulets usually consist of writings on a small piece of paper  that a woman can pin to her body or keep in a pocket.  Farkhunda was appalled at the way the women’s superstitions were being exploited … She confronted … the fortuneteller.

The article then veers off in a more salacious direction, not strictly relevant to the crux of the story, about how the fortuneteller was selling Viagra and condoms on the sly.    To prevent Farkhunda from trashing her trade, the fortune-teller evidently decided that the best defense is a good offense, and accused her of burning the sacred volume;  that was passed to the mob, and grisly events followed.

There is a religious background here, however, which is crucial to the case;  and ultimately puts all this in quite a different light (theistically/legally;  no defense intended  of the quick-trigger savagery of the mob).

Now, neither birth-control nor aphrodisiacs are per se normally forbidden in Islam (though abortion is); for the latter, consult this jolly summary:

https://ar.wikipedia.org/wiki/%D9%85%D9%86%D8%B4%D8%B7%D8%A7%D8%AA_%D8%AC%D9%86%D8%B3%D9%8A%D8%A9_%D8%B7%D8%A8%D9%8A%D8%B9%D9%8A%D8%A9

But the amulets (and the fortuneteller) are quite significant here to the essence of the story, and the article does not spell this out.

The reader might get the impression that Farkhunda was simply objecting to the use of the shrine as a place of commerce, and upbraided them the way Jesus chased the money-changers from the Temple.  But the commerce in fortunetelling and amulets is islamically much worse -- as though the Temple-defilers had been selling pagan idols rather than merely changing your drachmae into denarii.   Mainstream (Sunni) Islam is quite emphatic in condemning pagan survivals and polytheistic deviations;  here Wiki quotes a hadîth (saying of the Prophet) against amulets:

وفي الحديث: مَن عَلَّق تَمِيمةً فلا أَتَمَّ الله له. وتعليق التمائم من فعل الجاهلية، كانوا يعتقدون أنه يدفع عنهم الآفات

The word used here for ‘amulet’ is tamîmah; the verb here, atamma, is from the same root, and the saying has the air of a bit of wordplay.  The word used in the article, tawiz, is from classical Arabic  ta`wîð  (accented on the second syllable; rhymes with seethe), from a root meaning ‘to seek refuge (from evil, with God)’, familiar in the common apotropaic phrase  a`ûðu bi-llâh.

As for fortune-telling, that too is deprecated as a survival of the jâhiliyyah (the Days of Ignorance before Islam) -- though in practice, a kind of Koran-based analogue of the bibliomantic sortes Virgilianae does survive, in the tolerated form of the istikhârah. 

Thus, at this point (as the article does not notice), Farkhunda appears, on the face of it, as a defensor fidei, in the face of her backsliding compatriots;  and thus, prima facie, a charge that she burned a Koran  would seem absurd.

But now comes a crucial further development, which the article quite glides over:  It seems that, in her iconoclastic zeal, Farkhuna went on to burn some of those amulets by setting a fire in a trash can.   Left to their own devices, readers may recall Christ’s equally vigorous action in the Temple, overturning the tables of the money-changers.  And had these amulets been, say, jade idols, there would have been no Islamic problem with destroying them -- indeed, ISIL and and Taliban deem it a duty, blowing up pagan statues far and wide.   Only … that is not what the ‘amulets’ are.  Reread the description: “the amulets usually consist of writings on a small piece of paper”.   Umm… What kind of writings?  “Today you will meet a tall dark stranger”?  “Help I’m a prisoner in a Chinese fortune-cookie factory”?  No:  typically, verses from the Koran.

Thus, it would appear that, indeed, Farkhunda did burn the sacred verses after all;  only, in the form of loose pages, rather than a bound book.  And that distinction is religiously immaterial.   It is difficult to avoid the conclusion that she was, then, within the culture, actually guilty  more or less as charged.

~

Secular readers will be unmoved by all that, and feel justified in not even attempting to understand what is really going on theologically (and thus, within Sharia, legally).  But abhorrence of burning God’s word, or even (in whatever secular context) the mere name of God,  is familiar, not only in Islam, but in Abrahamic religion generally. We deal with the matter here:

The ancient Jews, whether learnèd or otherwise, were loath to burn any scrap of writing, lest it contain, somewhere within it, the name of God (or rather, in keeping with the Hebraic decencies, the name of G*d).   Accordingly  those  who lived in Cairo, buried all excess scrip and scripture, in storerooms and cemetaries.

http://worldofdrjustice.blogspot.com/2013/09/the-cairo-geniza-re-seen.html

~

Such folk-superstitions as talismans and fortune-telling  may have a particular flavor in Muslim lands, but much of it is an area rather than intra-confessional phenomenon.  Thus, consider the folk-belief in the Evil Eye, characteristically circum-Mediterranean.

Two examples from my personal experience -- everyone involved being highly educated and long living in America.

(1)  A Christian woman originally from Lebanon was introducing her class to Lebanese culture, and mention the tradition of the dreaded al-`ayn.   Of course, she said (standing there in fully modern Western dress), that’s all just superstition, people don’t really believe in it anymore, only … A change came over her, and her eyes turned inward, as she reminisced.

“Just last month something happened… I had a very fine tall potted plant in the entry-way, and a friend came to visit, and remarked on how nice the plant was.  And … the next week … it had withered and died!”

That would be a prototypical case of hexing via the Evil Eye, whose essence is envy.

Thus:  Hint to non-initiates.  When dealing with people from a Mediterranean culture, be especially cautious of praising their children, and being careful to dot your discourse on such subjects with mashaallaah!, which reputedly draws the sting of the Eye.

(2)  I once took dialect tutoring from a woman originally from Baghdad.  Though Muslim, she did not seem to have narrow religious views -- her parents had sent her to a Jewish school for one year, simply because it was conveniently in the neighborhood;  and she sometimes prays to the Virgin Mary (“since only she would understand a woman’s troubles”).  The class went well.

Later, two (Christian) young women, colleagues of mine (one blonde, one brunette, as we shall note so as to tell them apart) shared tutoring-sessions with the same teacher.  But the brunette noted that the teacher would never look directly at her, though she was at ease with the blonde.   When the brunette would ask a question in Arabic, the teacher (looking away) would respond in English -- vitiating the point of the class.

“As the weeks went by, I got more and more frustrated,” she reports.  “And then I noticed that, each week, the teacher had put on yet another piece of turquoise jewelry.”   Suddenly she realized what had been going on:  this young woman had blue eyes (not very, though), and that feature is said to be characteristic of al-`ayn.  The turquoise stones function as (blue) amulets against this.