Speaking of animals and the law, I know of no where else to first turn but Melville:

Most mariners cherish a very superstitious feeling about seals, arising not only from their peculiar tones when in distress, but also from the human look of their round heads and semi-intelligent faces, seen peeringly uprising from the water alongside.  In the sea, under certain circumstances, seals have more than once been mistaken for men (The Whale, 570).

And vice versa. A San Diego fellow just last year met his watery grave by fooling a poor Great White (flapping as he did a ways out in a black wet suit).  When one thinks he is biting into a nice macaroni noodle, behold! a plastic coated worm!

But as with seals, so with pigs.  The posh Christopher Hitchens attempts an almost identical theory for the timeless trepidation over the pig:

The simultaneous attraction and repulsion derived from an anthropological root: the look of the pig, and the taste of the pig, and the dying yells of the pig, and the evident intelligence of the pig, were too uncomfortably reminiscent of the human (god is not Great, 40).

But here now is the thesis: Is not there a dispositional reason for our denigration of the pig? Is not there just something swinish, something messy, muddy, and chaotic, in their very nature? They cannot help but do otherwise, right?  As with humans, so with pigs; their freedom of character lies mainly in their inherited situation:

Orwell actually did dislike pigs, as a consequence of his failure as a small farmer, and this revulsion is shared by many adults who have had to work with these difficult animals in the agricultural conditions.   Crammed together in sties, pigs tend to act swinishly, as it were, and to have noisy and nasty fights.  It was not unknown for them to eat their own young and even their own excrement, while their tendency to random and loose gallantry is often painful to the more fastidious eye.  But it has often been noticed that pigs left to their own devices, and granted sufficient space, will keep themselves very clean, arrange little bowers, bring up families, and engage in social interaction with other pigs.  The creatures also display many signs of intelligence, and it has been calculated that the crucial ratio – between brain weight and body weight – is almost as high with them as it is in dolphins.  There is great adaptability between the pig and its environment, as witness wild boars and “feral pigs” as opposed to the placid porkers and frisky piglets of our more immediate experience.

Hitchens, for some narrative reason only known to my unconscious intuition, provides this information on pigs before getting on to the business of god without any trace of explicit theorizing on Situationism. Yet it is this peculiar note on pigs that betrays Hitchens’ adoption of the general thesis. And as with pigs, so with cattle. Clarence Darrow made exactly this argument regarding cattle, as provided by the recent entry  of the Situationist:

Some of you people have lived in the country. It’s prettier than it is here. And if you have ever lived on a farm you understand that if you put a lot of cattle in a field, when the pasture is short they will jump over the fence; but put them in a good field where there is plenty of pasture, and they will be law-abiding cattle to the end of time.

Not content with metaphor and analogy, Darrow went on to draw a scientific correspondence between human mammals, cattle, and in fact the rest of the animal kingdom. Darrow addressed the prisoners in the Chicago jail:

The human animal is just like the rest of the animals, only a little more so. The same thing that governs in the one governs in the other. . . . nine-tenths of you are in jail because you did not have a good lawyer and of course you did not have a good lawyer because you did not have enough money to pay a good lawyer. There is no very great danger of a rich man going to jail. . . .  I will guarantee to take from this jail, or any jail in the world, five hundred men who have been the worst criminals and law breakers who ever got into jail, and I will go down to our lowest streets and take five hundred of the most hardened prostitutes, and go out somewhere where there is plenty of land, and will give them a chance to make a living, and they will be as good people as the average in the community. There is a remedy for the sort of condition we see here. The world never finds it out, or when it does find it out it does not enforce it. You may pass a law punishing every person with death for burglary, and it will make no difference. Men will commit it just the same. In England there was a time when one hundred different offenses were punishable with death, and it made no difference. The English people strangely found out that so fast as they repealed the severe penalties and so fast as they did away with punishing men by death, crime decreased instead of increased; that the smaller the penalty the fewer the crimes. Hanging men in our county jails does not prevent murder. It makes murderers. And this has been the history of the world. It’s easy to see how to do away with what we call crime. It is not so easy to do it. I will tell you how to do it. It can be done by giving the people a chance to live — by destroying special privileges. So long as big criminals can get the coal fields, so long as the big criminals have control of the city council and get the public streets for street cars and gas rights, this is bound to send thousands of poor people to jail. So long as men are allowed to monopolize all the earth, and compel others to live on such terms as these men see fit to make, then you are bound to get into jail. The only way in the world to abolish crime and criminals is to abolish the big ones and the little ones together. Make fair conditions of life. Give men a chance to live. Abolish the right of private ownership of land, abolish monopoly, make the world partners in production, partners in the good things of life. Nobody would steal if he could get something of his own some easier way. Nobody will commit burglary when he has a house full. No girl will go out on the streets when she has a comfortable place at home. The man who owns a sweatshop or a department store may not be to blame himself for the condition of his girls, but when he pays them five dollars, three dollars, and two dollars a week, I wonder where he thinks they will get the rest of their money to live. The only way to cure these conditions is by equality. There should be no jails. They do not accomplish what they pretend to accomplish. If you would wipe them out, there would be no more criminals than now. They terrorize nobody. They are a blot upon civilization, and a jail is an evidence of the lack of charity of the people on the outside who make the jails and fill them with the victims of their greed.

You can read the entire address at the Situationist here.

Lest the reader think they have the full truth of what transpired during this address, consider H.L. recounting of Darrow’s speech at the Scopes Monkey Trial:

You have but a dim notion of it who have only read.  It was not designed for reading, but for hearing.  The clanging of it was as important as the logic.  It rose like a wind and ended like a flourish of bugles.  The very judge on the bench, toward the end of it, began to look uneasy (The Baltimore Evening Sun, July 14, 1925). 

But comparing man – the crowning jewel of creation, created from the dust of the earth to take dominion over everything living and non-living thing; comparing this lord of creation to the mere beast of the field; this will no doubt be ludicrous and shameful to many contemporary Americans, and with certainty, to an even larger percentage of our beloved yokels.  And so it remains true that, at times, the looking at nature objectively, and the  intellectual progress sure to follow in its wake, will not be permitted in our great country. The same was true for Darrow’s own close environment. Yet, this was no cause for locking truth away in the libraries of the elite. Darrow spoke of man qua animal boldly.  In fact, Darrow had to deal with this very issue formally while confronting William Jennings Bryan, a circumstance that very well could have contributed to Bryan’s close trailing death. Menken, an eye-witness, recounted the scene:

Once he had one leg in the White House and the nation trembled under his roars.  Now he is a tinpot pope in the Coca-Cola belt and a brother to the forlorn pastors who belabor half-wits in galvanized iron tabernacles behind the railroad yards.  His own speech was a grotesque performance and downright touching in its imbecility.  Its climax came when he launched into a furious denunciation of the doctrine that man is a mammal.  It seemed a sheer impossibility that an illiterate man should stand up in public and discharge any such nonsense.  Yet the poor old fellow did it. Darrow stared incredulous.  Malone sat with his mouth wide open.  Hays indulged himself in one of his sardonic chuckles.  Stewart and Bryan fils looked extremely uneasy, but the old mountebank ranted on.  To call a man a mammal, it appeared, was to flout the revelation of God.  The certain effect of the doctrine would be to destroy morality and promote infidelity.  The defense let it pass. The lily needed no gilding. (July 17).

And so as it is, American law, reverently obeying demotic Custom, has been wed to American Religion.  If man be an eternal soul with disposition to either do good or to do evil, bound for either eternal bliss and reward or everlasting torture and condemnation, either right now fully of the world or a God-filled saint of the universal ecclesia, then it follows plainly that man cannot be a social animal.  And if not a social animal, bound by the same laws as pigs and cattle, then society can continue resting content with a convenient and comfortable two-tiered universe: Us and the Other; the Good and the Bad. 

As a social animal, however, Darrow’s opinion of ‘justice’ might well be described by an alternative dualism; as Melville had it, man is as the great Sperm Whale, once yanked from its natural social environment and enslaved: to be, in the eyes of the law, either a Fast-Fish or a Loose-Fish (434-35):

Is it not a saying in every one’s mouth, Possession is half of the law: that is, regardless of how the thing came into possession?  But often possession is the whole of the law.  What are the sinews and souls of Russian serfs and Republican slaves but Fast-Fish, whereof possession is the whole of the law? What to the rapacious landlord is the widow’s last mite but a Fast-Fish? . . . What is the ruinous discount which Mordecai, the broker, gets from poor Woebegone, the bankrupt, on a loan to keep Woebegone’s family from starvation; what is that ruinous discount but a Fast-Fish? What is the Archbishop of Savesoul’s income of 100,000 seized from the scant bread and cheese of hundreds of thousands of broken-backed laborers . . . but a Fast-Fish? . . .  What was American in 1492 but a Loose-Fish?  What all men’s minds and opinions but Loose-Fish?  What is the principle of religious belief in them but a Loose-Fish?  What to the ostentatious smuggling verbalists are the thoughts of thinkers but Loose-Fish?  What is the great globe itself but a Loose-Fish? And what are you, reader, but a Loose-Fish and Fast-Fish, too?

This evening (Friday) I was working toward finishing an entry titled ‘The Southern Poverty Law Center, Harpers, & The Nation: Corruption at the Top Does Not Entail Corruption at the Bottom’. However, this will have to wait for Part 11 now that I have received an email from the notorious patriarchist Tim Bayly. This email provides some late and conclusive evidence for Bayly’s exceptional delusion or brazen deceit or, perhaps, a combination of both.

My goal here is not to inform the general public of Tim and David Bayly’s authoritarian, arrogant, censorious, and misogynist patriarchicalism. The general public – those who have had the least bit of exposure – already know this. Tim and David Bayly are also known as meek and mild ministers in the Presbyterian Church in America, but as I have discovered with Patriarch Wilson, this is often just the other side of the same spin-scum coin.

In what follows, I aim to offer updated evidence for the blatant deceit (or delusion) of Tim Bayly by way of introduction, since he appears well associated with the historic reconstructionist movement – including a somewhat recent, mutually-benefiting political association with Douglas Wilson. This entry is intended as background context for Part 11, which addresses the Southern Poverty Law Center’s new commitment to expose the reconstructionist movement and its children.  A bit laborious, but here it is for the record.

This is what happened: Today (Friday), I was led to Bayly’s popular blog for the first time in a few years. Once there, I found an unnamed magazine quoted and ridiculed on the issue of Calvin College, academic freedom, and homosexuality. The entry began, “A prominent evangelical magazine just did a piece on the complaint by Calvin College faculty reps that Calvin’s board has issued policy barring members of their faculty from promoting sodomy.” I was generally curious about this article, but I also wondered if the quotations were given in proper context. (more…)

5.1 Tarwater, The Schoolteacher, & The Unconscious Mind

“Children may be attracted to mad eyes. A grown person could have resisted. A child couldn’t. Children are cursed with believing.”
        The boy recognized the sentence. “Some ain’t” he said.
        The schoolteacher smiled thinly. “And some who think they aren’t are,” he said, feeling that he was back in control. “It’s not easy as you think to throw it off. Do you know,” he said, “that there’s a part of your mind that works all the time, that you’re not aware of yourself. Things go on in it. All sorts of things you don’t know about.”
        Tarwater looked around him as if he were vainly searching for a way to get out of the boat and walk off.
        “I think you are basically very bright,” his uncle said. “I think you can understand the things that are said to you.”
        “I never came for no school lesson,” the boy said rudely. “I come to fish. I ain’t worried what my underhead is doing. I know what I think when I do it and when I get ready to do it, I don’t talk no words. I do it.” (Flannery O’Conner, ‘The Violent Bear It Away’ in Collected Works, 1988, 436)

 

5.2   Introduction

In Part 2, I allowed Daniel Dennett to frame the spirit of the New Enlightenment, and I contrasted this frame with the continued naive cynicism of Greg Mitchell, which is representative of the backlash within legal theory to the widening terrain of the mind sciences (Mitchell in press; see Part1, section 3.2.2. For a good example of the widening of terrain, see The Situationist’s new post Law Students Flock to Situationism). In what follows, I give room to the emphasis of Christopher Hitchens, which will provide me opportunity to expand the notion of a genuine interdisciplinary method. Just such a method, I will argue, is necessary to mitigate the scientism latent in any new scientific advance, in particular, the advance of the mind sciences. I do this in part by expanding the structure of traditional anti-scientism arguments within philosophy of Mind; I add substance to the philosophical point by drawing on provocative narratives by C.S. Lewis and Flannery O’Conner. This will, I hope, provide a way to diminish the tension between the growing explanatory province of the mind sciences and the natural backlash this incurs.

 

6.1   Hitchens’ Humanism

My focus on Hitchens in what follows is timely, although coincidental. The media spike over Hitchens to-do with my spiritual father - a north Idaho prophet, known to some as Dear Leader Douglas Wilson – is getting ready to reach what should be its zenith. This is good news, since it means more marketing of Hitchens’ book, god is not Great (2007). Those of you new to this subject might not know of the events a few years ago when I went from loyal apologist for the Kirk, Wilson’s engineered community, to ridiculed outcaste. During this process, Wilson became my object of investigative journalism and specimen for informal social psychology research. This approach transformed sobering tragedy to a suffering into a good deal of truth – for myself and also for many of the readers of Pooh’s Think, Part 1. I am writing a book about this titled The Kirk: Mother of War.

After writing the rough draft of this entry, I received news that the Collision ‘movie’ or ‘documentary’ of Hitchens’ and Wilsons’ three day tour will be premiered in New York City on the 28th, with Hitchens and Wilson in attendance, and in L.A. on the 29th. Aaron Rench, one of my old Kirk ‘friends’ is the ‘producer’. (Many words require quotation marks, given the Kirk’s somewhat turn-key and nepotistic approach to saving civilization). You can read a recent exchange between Hitchens and Wilson at the Huffington Post’s web site. Hitchens and Wilson will be making appearances this Friday, 10/23 10am ET, live on the Laura Ingraham show (oops, this just took place as I go over my final edit); Sunday 10/25, on NPR “All Things Considered” Weekend Edition; and Monday 10/26, on the 7am hour on Fox News’ “Fox And Friends”.

I have already offered some analysis of Hitchens and Wilsons’ original ‘published’ ‘debate’ (again, quotation marks prove helpful); you can find my summary of that ‘debate’ here and what I consider my primary analysis entry here . Timeliness turned to a bit of irony last night, after my wife brought home a random DVD selection from the library titled the Trials of Henry Kissinger; in the early days of dissent, I and some others dreamed about the Trials of Douglas Wilson, and at one point I began a fictional narrative of the trial. Christopher Hitchens is qualitatively the primary interviewee in this documentary on Kissinger, which appears to be based on Hitchens’ book The Trial of Henry Kissinger. This is a helpfully sobering documentary, by the way, and I highly recommend it.

With that said, I return to the subject of mind science and the New Enlightenment. Hitchens concludes god is not Great (2007):

Above all, we are in need of a renewed Enlightenment, which will base itself on the proposition that the proper study of mankind is man, and woman. This Enlightenment will not need to depend, like its predecessors, on the heroic breakthroughs of a few gifted and exceptionally courageous people. It is within the compass of the average person. The study of literature and poetry, both for its own sake and for the eternal ethical questions with which it deals, can now easily depose the scrutiny of sacred texts that have been found to be corrupt and confected. The pursuit of unfettered scientific inquiry, and the availability of new findings to masses of people by easy electronic means, will revolutionize our concepts of research and development. Very importantly, the divorce between the sexual life and fear, and the sexual life and disease, and the sexual life and tyranny, can now at last be attempted, on the sole condition that we banish all religions from the discourse. All this and more is, for the first time in our history, within the reach if not the grasp of everyone.

Extrapolating from Hitchens’ emphasis here, I submit that science does not gain automatic entry into this renewed or, according to Lakoff, New, Enlightenment (2008). Scientism, pinhead researchers, and political authoritarianism within scientific institutions do not get a free ride, of course, but even scientific fact, as such, can be held suspect in certain contexts. It is worth noting that in this quote from Hitchens, science comes last, after literature and poetry. As seen in Part 2, science captures the spirit of the new enlightenment in virtue of the humility, checks and balances, and freedom of inquiry latent within scientific practice, but there is more to be said; context has the power to critically shape to the meaning of any given scientific ‘fact’. My preliminary description of the New Enlightenment, in Part 1 , was intended to capture this point: “a progressive, interdisciplinary demeanor that weds the emerging mind sciences, meta-critical philosophy, the arts, and the work of the public intellectual.” Here, the mind sciences do not receive privileged weight.

 

6.2   Interdisciplinary Method & Being Human

By ‘interdisciplinary,’ I reference a demeanor that covers cosmopolitan trans-human experience and concern. The New Enlightenment is a renewed humanism, the study of man, and woman. Our human nature is repulsed by any hard, premature reduction since being human entails its denial – emotionally and intellectually. We all know to some degree what it is like to be human, and as Hitchens pronounced, literature and the advance of science is now in the reach of everyone. In reach is not membership in an elite band of literati within the hallways of Oxford and Cambridge – poised with status and wealth as much as, or more than, intellect, curiosity, and passion. The New Enlightenment is rather a demotic literati of noble intellect. A farmer in Oregon and a house painter in Kansas, connected through local culture, mentors, and access to the internet, are often better poised as future literati than the average frat boy enjoying the first two years of parent-paid college (although I remain an elitist with respect to graduate focused work at top-ranked research institutions). Something could be said even for the extreme contrast to academia; one of the most important mentors I have had (a Stanford PhD) expressed to me the noteworthy experience of teaching classes to convicts while on leave. The students of this kind of classroom had a deep ‘appreciation’ for the topics discussed; to understate the case: they took far less for granted than the average American college student.

 

6.3   The Noble Intellect

The noble intellect, at some sort of minimum, understands its need for ecumenical discussion, discipline, and tutelage, while also refusing to turn the cheek to vain authoritarianism – in the home, in the government, in the workplace, in the school, in the scientific establishment, in the media, in any social context where mechanisms of control are naturally operative; the noble intellect says with humble finality, ‘they will not tread on me.’ Truth and liberty, and their cultural descendents, are too precious. The free intellect is, as those who possess it know intimately, self-justifying (see Hitchens’ Letters to a Young Contrarian, 2001, and the curious discussion that arose in the comment section of my entry  regarding this book).

When I think of a noble intellect, as apposed to, say, a noble savage, I do not yet have anything worthy of conventional definition. I envision, roughly, an imagination best captured by the phrases, taken only in their combined unity: Cosmopolitan Society, Justice, Peace, Mercy, Dignity, Human Flourishing, Liberty, Freedom, Freedom of Inquiry, Freedom of Speech, Inquisitiveness, Nurture, Love, Family, Love of Children, Village, Culture, Mitigation of Suffering, Sensitivity to Ecology, Love of Nature, Discipline, Frugality, Hard Work, Humility, Checks and Balances of Necessary Power, Love of Beauty, Art, Realism, Passion, and Compassion.

 

6.4   Scientism, what-it-is-like-to-be, & what it is to be Human

Scientific fact qua fact (or diagram, chart, equation, 3-D model, image, or simulation) is subservient to the noble intellect and the humanism entailed by genuine interdisciplinary inquiry.   What it is to be human trumps scientific fact.  But I must contrast what it is to be human with the close and also important conception of what it is like to be human. The latter has been conceived by philosophers – Thomas Nagel, for example – to be a cross-modal phenomenal unity as well as a phenomenal unity through time. However, the imagination of philosophers, as it is, has often relegated this intuition to some sort of Cartesian Theatre (Dennett, 1991). So I will here attempt a more accurate picture:

 1) What it is like to be human is not what it is like for Sally to simply be Sally. Nor is it what it is like for Sally to engage in some generalized activity: What it is like for Sally to see Paris by Moonlight (although Dennett dissents, 2007), or more abstractly: What it is like for S to V. For a correct statement of this point, albeit with a wrong application and conclusion, see P.M.S. Hacker’s ‘Is There Anything it is Like to be a Bat?’ (Philosophy 77, 2002.).  Rather, what it is like to be human is a generalization from the concrete and the specific. In this case, the concrete and specific is what it is like for Sally to be Sally at time t.

 2) Time slices do not really exist, though, and so ‘time t‘ in reality references a time sequence, or, a unity through time. This is at least true in some sense. Traditional philosophy has not been quick to perceive any illusions that can spring from reconstructing our own awareness, or consciousness. We do after all seem to have a continuous, singular stream of consciousness, which in turn appears to be structured according to coherent frames and narratives. Yet, the mind sciences are revealing anything but such a simple and intuitive picture. So only roughly and tentatively, I reference a unity through time in order get past timeless slices of experience – given their non-existence.  

 3) Most importantly, the traditional ‘Hard Problem’ of philosophy of Mind can be expanded to the larger interdisciplinary project of the New Enlightenment. The Hard Problem has conventionally pertained to whether or not qualia ghosts exist (the sort of ontology that comprises consciousness, what it is like to be), and if so, whether or not these ontological items may be somehow thoroughly explained through scientific practice.  I submit that this is not the Hard Problem – more ideally construed – but only one confused part of the Hard Problem. The Hard Problem is larger than this; the Hard Problem is conceiving of a mind science that successfully encompasses all there is to encompass, including, for example, the cognitive mechanisms responsible for the scientific imagination of the cosmologist.

  

6.5    What Mary Didn’t Know

 This brings me to the structure of an old argumentative tradition in Philosophy of Mind. Although Nicholas Maxwell (1966, 2000) might have been the first to tell the story about a girl named Mary, the story’s classical expression, known also as the “knowledge argument,” was given by Frank Jackson in his essay ‘What Mary Didn’t Know’ (1986).  The context was, roughly, the war between physicalism and metaphysical dualism, and a concern over ‘scientism’ often protruded itself. Mary, a scientific goddess-like little girl, grew up in a black and white laboratory and happened to know all the physical facts about the universe there were to know. If Mary, once finally leaving her black and white environment, did in fact learn a new fact upon seeing red for the first time (a fact related to what it was like to see a certain shade of red, for instance), then there must be a class of facts that are “non-physical” – a conclusion that for some philosophers had momentous metaphysical import. 

 According to Frank Jackson, “What she knows beforehand is … everything physical there is to know, but is it everything there is to know?  That is the crucial question.”  David Chalmers’ intuition ten years later is similar, but a bit stronger: “If a materialist is to hold on to materialism, she really needs to deny that Mary makes any discovery about the world at all” (1996; my emphasis). (Dennett’s more recent discussion about Mary’s surprise [2007] is a bit too X-rated for my purposes here.)  Somewhat similarly, Thomas Nagel famously argued in ‘What It is Like to be a Bat’ (1974) that there seems to always be some sort of discovery – at least in principle – with a change in a subjective point view. 

 This argument can be expanded, so it seems to me, within a more interdisciplinary context. However, I have traditionally criticized how this argument has been played out. Nagel assumed the existence of facts that were beyond the human conceptual system, likening facts to numbers – an idea no less bizarre than countless other platonic ideas philosophers have proposed. Thus, materialism was somehow intractable given the existence of facts about, for instance, what it is like to be a bat, which are beyond the ability of a human conceptual system to know.  But, as I have noted for the last decade, propositions do not exist, and without the context of human linguistic practice, a ‘fact’ is nonsensical.  Yet, Jackson likewise dismissed Paul Churchland’s criticism by claiming that the only metaphysical point of interest was whether or not Mary came to know a new fact upon seeing red. Gained ability, experiential knowledge, or surprise was beside the point. Chalmers’ approach differed slightly from this, and I think he states the problem most satisfactorily.  Again,  “If a materialist is to hold on to materialism, she really needs to deny that Mary makes any discovery about the world at all.” Jackson’s statement remains apt and complimentary: “. . . but is it everything there is to know?  That is the crucial question.”  But the word ‘know’ here is unfortunate; it has led to disputes over whether this knowledge encompasses abilities in addition to knowledge of fact, while leaving, to my continued astonishment, the knowledge of what it is like to be entirely alone.

 I therefore prefer to leave explicit reference to phenomenology and knowledge out of my expanded formulation:  the Hard Problem is conceiving of a mind science that successfully encompasses all there is to encompass.  If we are going to discover a solution to this one confused part of the Hard Problem – the problem over the existence and metaphysical/scientific status of qualia (or phenomenal concepts, or higher orders of representations, or the like) – it will from here take all the resources of the mind sciences within the interdisciplinary context of the New Enlightenment.

 But, given this expanded context, there is a good deal more to encompass than the qualia of consciousness. There is unity that we find between brain and mind, mind and body, body and the full embrace of a fine-tuned environment. Further, many of our artifacts are in a sense extensions of our mind (Dennett, 1995). This fine-tuned, delicately balanced environment is the warm cradle in which our minds have been fashioned: above water and roughly above sea level, close to the equator (at least, without technological life support systems that have come lately, such as a fur jacket). Our own individual experience of place is a microcosm of the dependency of one kind of life on another and of our dependence on a larger social world, typically involving other humans (but at times relying on slightly lower level intentional organisms, such as fish, lizards, gerbils, cats, monkeys, and closest to the human heart, the domesticated canine). In sum, the brain would be almost powerless – meaningless even – without the body. The brain and the body comprise an organic whole; there is no clear line to be drawn between the two. Further, there would be no mind as we know it unless is was an embodied mind; and there would be no embodied mind as we know it without a world in which embodiment took place. 

 The Anglo philosopher might not be content with such a move: No sense in snooping around in the dark alleyway after we have located such a precise formulation of the Hard Problem right under the lamp post.  I have two tentative, preliminary responses to this just concern:

 1) There seems to be universal agreement among philosophers of Mind (for example, the nonreductivist John Searle, 1991) that further scientific discovery will provide explanations for how consciousness arises. Neurons do it, for sure, we just do not have a clue how. There seems to be agreement that neurobiological advance will surely provide significant constraints on what there will then be to discover, which I contribute to the power of scientific discovery to change our conceptions of what we are and how we relate to the world around us. However, lower level mechanisms will not thereby provide the final field of study of all there is to discover.

 2)   Further, what we have seen so far in the mind sciences is a significant blurring of any line we conceive between consciousness and unconsciousness. The embodied, conceptual metaphor often employed is Consciousness is Space Above, where consciousness is above and unconsciousness is below a horizontal line, such as the boundary between ocean and sky, or between what is above or under a car hood. But the mind sciences continue to fuzz this line.  This helpful conceptual metaphor may end up little more than a passing, temporarily helpful, illusion. We mistake sophisticated unconscious mechanisms for special access to qualia, and we mistake simulations of reconstructed episodic memory for the products of original, stable unconscious ‘perception’. My theory is that much of our ‘intentionality’ is not the product of conscious intention at all, but rather a product of more primitive, albeit more sophisticated, forms of unconscious intentionality (integrating metaphor theory with Dennett’s Intentional Stance, 1995).

 3) There is therefore no clear boundary between unconsciously produced language and discursive thought, between the imagination and unconscious narrative scripts and frames, between the searching for the right word and the creative on-line construction that right word cues (Seana Coulson, Semantic Leaps, Cambridge, 2001), between knowledge of what it is like to be human and knowledge of what it is to be human, and between our knowledge of what it is to be human and our timeless literary traditions. We are all anthropologists never really knowing if what we have derived came from inside or from without.

  

7.1    Lions, Brains & Neurons, Oh My!

In consideration of this, I am not shy to wonder out loud if the new rave about ‘brains’ and pictures of ‘neurons’ is just not quite right, and perhaps, even to a degree pathological at times. Jurassic Park comes to mind here, as a parable, if not a sound philosophy of science illustration. Recall the disdain the paleontologist had for the arrogant boy that did not find old fossils of much interest, and the resulting scary lesson involving a raptor claw. Even better, consider the aesthetic, sensual scripts implicit in the paleontologist’s conceptual tools while digging for dinosaur fossils, revealed explicitly the moment the park’s new visitors come face to face with bones enfleshed.  It was the awe of the scientist and not the naive observer that brought them to their knees upon seeing the real thing. The wonder and shock was in part noticing the fine grained differences between the real dinosaurs and contemporary scientific imagination. I found a main web site  for Jurassic Park, and sure enough, the main page begins automatically playing the precise footage I have in mind here. 

 The brain sciences work in reverse; in many respects we have the wonder of the human experience already captured within our local purview, and less mundanely, in the experience recorded in our literature. Locating neuronal networks, and even, higher level cognitive mechanisms, and saying “here it is, this just is the human life” would be to commit the reductionist fallacy – regardless of how many folk illusions are uprooted in the process.  But this is the natural ‘pull’ of the scientist, resulting in the natural, intuitive fear responsible for the backlash. At once, our freedom, our transcendence, our morality – the beauty and awe inspiring world of the imagination, all our cherished humanity – all this vanishes, leaving us locked within an ugly, meaningless, deterministic prison. Wilson, lacking any form of sophisticated argument or noble, compassionate sentiment (as coyly noted by Molly Worthen, and less coyly by Hitchens [Canon Press, 2008]), resorts to an incessant play on this natural fear. This is in fact the primary thrust of Wilson’s response to Hitchens in the recent Huffington Post exchange I linked to above (6.1):

 The atheistic worldview is nothing if not inherently reductionistic, whether this is admitted or not. Everything that happens is a chance-driven rattle-jattle jumble in the great concourse of atoms that we call time . . . if the universe is what the atheist maintains it is, then this determines what sort of account we must give for the nature of everything — and this includes the atheist’s thought processes, ethical convictions, and aesthetic appreciations. If you were to shake up two bottles of pop and place them on a table to fizz over, you could not fill up an auditorium with people who came to watch them debate. This is because they are not debating; they are just fizzing . . . Nor does atheism allow us to have any fixed ethical standard, or the possibility of beauty.

 

 7.2    C.S. Lewis & Flannery O’Conner

 C.S. Lewis and Flannery O’Conner, both Christian theists, make no such crude claims, in part because they wished distance themselves from the cussed fundamentalism that Wilson has been rhetorically committed to his entire life. (Although there are different attitudes in Christendom about this sort of distinction, as seen in the different stances taken on the idea of ‘fundamentalism’ by N.T. Wright [Fortress Press, 1992] and Alvin Plantinga [Oxford, 2000]). In fact, the story I have drawn from by Flannery O’Conner (cited at the beginning of this entry and more exhaustively in what follows) captures all transcendence within an immediate psychological interpretation; throughout the story, there needs be no assumption on the part of the reader, or even within the denouement of each remaining character’s life, that theism be true or false.  

  

7.3    The Gaze of the Giant

 In The Pilgrim’s Regress, C.S. Lewis captures both the fear and the feeling of confinement, determinism, and even imprisonment that most have towards a prematurely reductionist assessment of the human experience.  The following is the entirety of the short section called ‘Facing the Facts’:

 John Lay in his fetters all night in the cold and stench of the dungeon.  And when morning came there was a little light at the grating, and looking around, John saw that he had many fellow prisoners, of all sexes and ages.  But instead of speaking to him, they all huddled away from the light and drew as far back into the pit, away from the grating, as they could.  But John thought that if he could breathe a little fresh air he would be better, and he crawled up to the grating.  But as soon as he looked out and saw the giant, it crushed the heart out of him: and even as he looked, the giant began to open his eyes and John, without knowing why he did it, shrank from the grating.  Now I dreamed that the giant’s eyes had this property, that whatever they looked on became transparent.  Consequently, when John looked round into the dungeon, he retreated from his fellow prisoners in terror, for the place seemed to be thronged with demons.  A woman was seated near him, but he did not know it was a woman, because, through the face, he saw the skull and through that the brains and the passages of the nose, and the larynx, and the saliva moving in the glands and the blood in the veins: and lower down the lungs panting like sponges, and the liver, and the intestines like a coil of snakes.  And when he averted his eyes from her they fell on an old man, and this was worse for the old man had cancer.  And when John sat down and drooped his head, not to see the horrors, he saw only the working of his own inwards.  Then I dreamed of all these creatures living in that hole under the giant’s eye for many days and nights.  And John looked round on it all and suddenly he fell on his face and thrust his hands into his eyes and cried out, ‘It is the black hole.  There may be no Landlord, but it is true about the black hole.  I am made.  I am dead.  I am in hell for ever.’

I see no reason not to draw the same conclusions about some contemporary talk of ‘the brain’ and the significance of the ‘neuron’ – although touting just this for a neuro-science program seems perfectly natural!  The most basic cognitive abilities we share, such as somehow seeing a seagull as a seagull or unconsciously recognizing a word, are higher-level mechanisms realized by efficient parallel processing among hundreds of thousands of neurons and billions of connections among them (for some excellent recent scholarship on mechanism, see William Bechtel [UCSD] generally, and specifically: Bechtel and Abrahamsen, ‘Dynamic Mechanistic Explanation: Computational Modeling of Circadian Rhythms as an Exemplar for Cognitive Science’,  to appear in Studies in History and Philosophy of Science Part A).  Further, these mechanisms are embodied, and the seagull or a semantic item is part of our fine-tuned environment in which and for which our mind was designed. I attempted to describe my experience of a seagull not too long ago on Eric Schwitzgebel’s blog, the Splintered Mind :

 I recall my intense gaze on Saturday, when I was tempting a seagull to get 18 inches away from me with some treats. The social context was implicit and certainly not fully unconscious. . . .I must have had some kind of conscious employment of sensory-motor simulation, since I could perceive the softness of the feathers around the entire seagull-object. I watched the seagull turn its head back and forth, apparently more concerned about what was going on all around more than with me. I could therefore in some sense consciously grasp the seagull’s motions through my own embodied emulation mechanisms. Further, this perception must have involved a conscious aspect of the mapping of this embodied emulation to a “survey” view, since part of the emulation was an immediate awareness of seagull’s 360 degree tracking of the environment.

Explaining such a common, basic event in human experience will be informed more and more by the neurosciences, but there will  remain an unbridgeable chasm in our scientific imagination between basic level neuronal mechanisms and the higher level mechanisms of perception and simulation they realize – and even more so with respect to the interplay between the conscious and unconscious mind during perception. Patricia Churchland explains “network-level research” as intended to bridge the gap between “coherent global, system-level change” and the level of neurons (‘How do neurons know? Daedalus Winter, 2004).  But such an explanatory bridge will not remove the need for an imaginative toggle between lower level and extensively higher level mechanisms. The natural fear produced by some hard reductionist symbols and suggestions, is that this lower-level explanation will become the new, authoritative eyes of the scientific imagination, now looking down upon us in our new dungeon, admitting to meaningful experience only the inner workings of our brains. But this is not a consequence of the progression of the mind sciences so long as they are kept within a broader, humanist, and more realistic interdisciplinary methodology – the methodology of the New Enlightenment. 

 

 7.4    Fear & Backlash

 So it is with the natural backlash (see Part 2) explored by Adam Benforado and Jon Hanson in “Naive Cynicism: Maintaining False Perceptions in Policy Debates” (57 Emory Law Journal 499, 2008).  Human experience will remain to a degree ‘free’ and transcendent regardless of what we discover about the intentional nature and sophistication of the unconscious mind – which, recall, was perfectly ambiguous in Gregory Mitchell’s recent expression of backlash. This is because the change in our conceptions of ourselves and how this change effects our life experience is limited. The fear of determinism here is little different from the theist’s fear of losing meaning and morality upon losing belief in God.  Such a conceptual and emotional transition certainly removes thick layers of meaning, which can be frightening at first, and does have consequences for human morality (I speak in part from first person experience).  But it does not remove meaning altogether and in fact permits greater conceptual and emotional – not to separate the two – access to just what robust, genuine morality is: empathy rather than obedience. But the fervor of scientism is fairly careless about these kinds of cultural distinctions and can produce a good deal of repulsion from the common man – perhaps on occasion with sinister intent.

  

7.5    Flannery O’Conner & the Fear of The Unconscious

 In one of her two longer stories, ‘The Violent Bear It Away’  (Collected Works, 1988), O’Conner gives a compelling view of the psychology of a determined and fearful old man and his two nephews: Tarwater, a naive and confused boy and the schoolteacher, a reductionist. Both the old man and the boy are afraid to ‘become’ scientific data within the schoolteacher’s head; they both desperately seek their freedom, freedom to act, as the gaze of Lewis’ giant threatened to reveal the powerful workings of their unconscious mind. The third paragraph into the story begins:

 The old man was in a position to know what his ideas were. He had lived for three months in the nephew’s house on what he had thought at the time was Charity but what he said he had found out was not Charity or anything like it.  All the time he had lived there the nephew had secretly been making a study of him.  The nephew, who had taken him in under the name of Charity, had at the same time been creeping into his soul by the back door, asking him questions that meant more than one thing, planting traps around the house and watching him fall into them, and finally coming up with a written study of him for a schoolteacher magazine.  The stench of his behaviour had reached heaven and the Lord Himself had rescued the old man.  He had sent him a rage of vision, had told him to fly with the orphan boy to the farthest part of the backwoods and raise him up to justify his Redemption. (331)

 Now alone in a shack surrounded by a corn field miles from a regularly traveled path, the old man, a self-appointed prophet, lectures Tarwater, the boy he stole from the schoolteacher’s house:

 ”I saved you to be free, your own self!” he had shouted, “and not a piece of information inside his head!  If you were living with him, you’d be information right now, you’d be inside his head, and what’s furthermore,” he said, “you’d be going to school.” (339)

 This appears to be the sturdiest thread throughout the story, and comes back again and again:

 . . . indistinguishable from the herd, and in the schoolteacher’s head, he would be laid out in parts and numbers.  “That’s where he wanted me,” the old man said, “and he thought once he had me in that schoolteacher magazine, I would be as good as in his head.”

            The schoolteacher’s house had had little in it but books and papers.  The old man had not known when he went there to live that every living thing that passed through the nephew’s eyes into his head was turned by his brain into a book or a paper or a chart. The schoolteacher had appeared to have great interest in his being a prophet, chosen by the Lord, and had asked numerous questions, the answers to which he had sometimes scratched down on a pad, his little eyes lighting every now and then as if in some discovery.

            The old man had fancied he was making progress in convincing the nephew again of his Redemption, for he at least listened though he did not say he believed [Note that Dennett's Heterophenomenology is free of such hypocricy, 1991]. He seemed to delight to talk about the things that interested his uncle.  He questioned him at length about his early life, which old Tarwater had practically forgotten.  The old man had thought this interest in his forebears would bear fruit, but what it bore, what it bore, stench and shame, were dead words.  What it bore was a dry and seedless fruit, incapable even of rotting, dead from the beginning.  From time to time, the old man would spit out of his mouth, like gobbets of poison, some of the idiotic sentences from the schoolteacher’s piece.  Wrath had burned them on his memory, word for word. 

            “His fixation of being called by the Lord had its origin in insecurity.  He needed the assurance of a call, and so he called himself.”  “Called myself!” the old man would hiss, “called myself!” (341)

 . . . “Where he wanted me was inside that schoolteacher magazine.  He thought once he got me in there, I’d be as good as inside his head and done for and that would be that, that would be the end of it.  Well, that wasn’t the end of it! Here I sit.  And there you sit.  In freedom.  Not inside anybody’s head!” (342). 

 After the old man died, a stranger, who knew of these events, explained to Tarwater:

 [The old man] favored a lot of foolishness, the stranger said.  The truth is he was childish.  Why, that schoolteacher never did him any harm.  You take, all he did was to watch him and write down what he seen and heard and put it in a paper schoolteachers to read.  Now what was wrong in that?  Why nothing.  Who cares what the schoolteacher reads?  And the old fool acted like he had been killed in his very soul. (345)

 Going back in time – as is O’Conner’s habit – we are given a scene in which the old man lectures a lawyer in the city:

 ”Listen, ” his uncle said, “all the time he was studying me for this paper. Taking secret tests on me, his own kin, and crawling into my soul through the back door and then says to me, ‘Uncle, you’re a type that’s almost extinct!’ Almost extinct!” the old man piped, barely able to force a thread of sound from his throat.  “You see how extinct I am!” (348)

 In later confrontation with the schoolteacher, now posed with the Problem of Evil:

 ”Yours not to ask!” the old man shouted.  “Yours not to question the mind of the Lord God Almighty.  Yours not to grind the Lord into your head and spit out a number!” (351)

 O’Conner now takes us back in time when the old man originally read the article in the schoolteacher magazine, finally realizing he was reading about himself:

For the length of a minute, he could not move.  He felt he was tied hand and foot inside the schoolteacher’s head, a space as bare and neat as the cell in the asylum,  and was shrinking, drying up to fit it.  His eyeballs swerved from side to side as if he were pinned in a strait jacket again.  Jonah, Ezekiel, Daniel, he was at that moment all of them – swallowed, the lowered, the enclosed.

 And so, the old man explains to Tarwater back at their cornfield,

 . . . “It was me who could act,” the old man said, “not him.  He could never take action.  He could only get everything inside his head and grind it to nothing.  But I acted.  And because I acted, you sit here in freedom, you sit here a rich man, knowing the Truth, in the freedom of the Lord Jesus Christ.”

 After the old man was dead, Tarwater was united with the schoolteacher. The schoolteacher received Tarwater as would any inspired scientist:

 ”Now you belong to someone who can help you and understand you.” His eyes were alight with pleasure.  “It’s not too late for me to make a man of you!” 

            The boy’s face darkened.  His expression hardened until it was a fortress wall to keep his thoughts from being exposed; but the schoolteacher did not notice any change.  He gazed through the actual insignificant boy before him to an image of him that he held fully developed in his mind. (388)

 A good deal later, the schoolteacher attempts to educated Tarwater about the mechanisms of the unconscious mind, bring us back to the citation at the beginning of this entry:

            “Children may be attracted to mad eyes.  A grown person could have resisted.  A child couldn’t.  Children are cursed with believing.”

            The boy recognized the sentence.  “Some ain’t” he said. 

            The schoolteacher smiled thinly.  “And some who think they aren’t are,” he said, feeling that he was back in control.  “It’s not easy as you think to throw it off.  Do you know,” he said, “that there’s a part of your mind that works all the time, that you’re not aware of yourself.  Things go on in it.  All sorts of things you don’t know about.”

            Tarwater looked around him as if he were vainly searching  for a way to get out of the boat and walk off.

            “I think you are basically very bright,” his uncle said.  “I think you can understand the things that are said to you.”

            “I never came for no school lesson,” the boy said rudely.  “I come to fish.  I ain’t worried what my underhead is doing.  I know what I think when I do it and when I get ready to do it, I don’t talk no words.  I do it.” (436)

 

 8.1    Conclusion

 Forthcoming – although I try to stay clear of these kinds of conventional dogmatic stances.

1.1 Philosophy In Science

Not long ago, in a galaxy not too far away, Daniel Dennett published an elegantly short essay titled “The Part of Cognitive Science That Is Philosophy” (Topics in Cognitive Science 1, 2009, 231-236), in which philosophers are encouraged to do work, in view of Andrew Brook’s distinction, that simultaneously qualifies as philosophy of cognitive science and philosophy in cognitive science.

Philosophers you say?  Yes philosophers – although not the customary Anglo sort. Dennett humbly includes himself as taking part in the untidiness of philosophical tradition and largely passes by the vanity, absurdity, narrowness, arrogance, meaningless toil, and countless superstitions contemporary, philosophical mammals have been occupied with. Dennett merely acknowledges that “there is no dearth of reasons why philosophers are regarded askance (at best) by many in the scientific community and they are familiar enough so that I will just acknowledge them in passing” and goes on to note the habit of philosophers to comically misjudge their competence and their “bumblebee deductions – proving from ‘first principles’ that bumblebees cannot possibly fly.”  Yet, a richer context for these remarks should prove illuminating. Dennett has elaborated elsewhere, as in, for example, his contribution to the important volume Phenomenal Concepts and Phenomenal Knowledge (Oxford, 2007). Dennett concludes his essay ‘What RoboMary Knows’:

That’s the trouble with “pure” philosophical method here.  It has no resources for developing, or even taking seriously, counterintuitive theories, but since it is a very good bet that the true materialist theory of consciousness will be highly counterintuitive (like the Copernican theory – at least at first), this means that the “pure” philosophy must just concede impotence and retreat into conservative conceptual anthropology until the advance of science puts it out of its misery.  Philosophers have a choice: they can play games with folk concepts (ordinary language  philosophy lives on, as a kind of aprioristic social anthropology) or they can take seriously the claim that some of their folk concepts  are illusion generators.  The way to take that prospect seriously is to consider theories that propose revisions to those concepts.

Dennett anticipates a high frequency of important mistakes within the new field of cognitive science.  Philosophers are therefore free to “sit in the trees sniping away merrily.” But “that is not constructive.” We should rather “help them sort it all out, asking, not telling, being tentative, not preemptive, in our criticisms.” If you can “help scientists design experiments, they take you more seriously than they otherwise would do.”

Dennett concludes his short article with the admonishment:

It is worth remembering that the main reason everybody – really, just about everybody – is fascinated with, and troubled by, work in cognitive science is that it so manifestly promises or threatens to introduce alien substitutes for the everyday terms in which we conduct our moral lives.  Will we still have free will?  Will we still be conscious, thinking agents who might be held responsible? Does suffering really exist?  It is because we truly need good, philosophically sound, scientific answers to these questions and not to any substitutes, that philosophers have a very substantial job to do in the ongoing progress of cognitive science.

 

1.2 Promises and Threats in the New Enlightenment

Research in cognitive science simultaneously promises and threatens – somewhat like, perhaps, the old covenant of blessing and cursing; repentance before grace, death before resurrection . . . buckle up and take a deep breath.  Cognitive science tinkers with our everyday concepts on which our moral lives are built; thus, as Jesus himself might have put it, our old wine skins are not going to be sufficient for the new wine.

There is, then, a sense in which philosophers can play the role of mediating parish priests as the old empire crumbles and a new age dawns. But the New Enlightenment (see Christopher Hitchens’ final chapter in god is not Great, 2007 and Lakoff’s The Political Mind, 2008; see also the last entry here in the Wood  ) is a project far more interdisciplinary than these directives, taken alone, might suggest. Without literature, developmental psychology, anthropology, social psychology, investigative journalism, neurobiology, ichthyology, and entomology, to name a few (Christopher Hitchens reveals some valuable social insights from his study of pigs), it is not clear how fast we are to progress in anything like a New Enlightenment. See for example the contributing departments of the Sage Center For the Study of Mind at UC Santa Barbara.

1.3 Experimental Philosophy

It is still to be seen, in fact, how cognitive science comes to maturity as a science; it could possibly morph into a new empirical philosophy as the old philosophy vanishes with faculty retirements. And it is to be seen how our current philosophical tradition is to contribute to the work of cognitive science. I grow slightly worried, for instance, as a new generation of Experimental Philosophers toy with empirical projects in their garages before digesting Lakoff, Johnson, Fillmore, Fauconnier, and Turner.  There are many less than courageous thinkers to cite in our bibliographies if one wishes to merely waive all this aside by noting that Mental Spaces are not falsifiable and that Conceptual Metaphor is mere dead linguistic metaphor.  Experimental Philosophers’ chosen title of ‘X-Phi’ alone suggests a certain kind of youthfulness, and so we may see young philosophers setting off for the new wine – or settling down in their basement laboratory – without any wine skins at all.

I doubt Dennett sees things much differently. He has spent crucial energy studying subjects such as the mind sciences, computer programming, robot engineering, and religious anthropology (Breaking the Spell, 2006). He has likewise been apt, as he notes in this short article, to successfully help other scientists conduct their own experiments.
_____________

 

2.1 Law and Economics

I say all this by way of introduction.  Widening the interdisciplinary lens a bit – as far as my own investigative tinkering permitted this weekend – I now turn to economics and law; in particular, Adam Benforado and Jon Hanson’s “Naive Cynicism: Maintaining False Perceptions in Policy Debates” (57 Emory Law Journal 499, 2008). (Above Picture: Hanson on Left and Benforado on Right)  Benforado and Hanson conclude with meta-methodological insights and admonishment similar to Dennett’s, but for their own tradition:

Legal scholars debate substance—at least that is the story we tell ourselves. Go to any law school in the country and you will find us trading in ideas—intellectual jousting, with the sturdiest conceptions and analyses carrying the day. In truth, however, legal academics often exhibit the same behaviors as editorialists, radio talk-show hosts, and, more broadly, members of the general population. As this Article has shown, policy scholars devote significant time and energy to commenting or speculating about the explicit motives, biases, and prejudices of those with whom they disagree.  At the same time, they are unaware of the implicit motives (for, among other things, closure and system affirmation) that influence their own work. . . . Thus, the narrative of high-minded engagement and the inevitable triumph of the meritorious theory is, in significant part, a myth. The naïve cynical process seems to be shaping policies more than the cold hard data are.

Social psychology has struggled for acceptance within the legal academy, not because the insights of the field lack merit but because social psychology tells us things about ourselves that seem wrong, uncomfortable, and threatening, engendering a strong backlash.

If we want to know what is influencing legal theory and policy, we cannot continue to confine ourselves to studying numbers and graphs, and weighing the strengths of logic-driven arguments. Legal scholars, lawyers, and law students must also consider the operation of unseen dynamics around us and within us that may be the critical factors determining winners and losers in our major debates.  (1143-1145)

Jon Hanson is co-founder of The Situationist and Alfred Smart Professor of Law at Harvard Law School.  Adam Benforado is Assistant Professor of Law at The Earle Mack School of Law at Drexel University (J.D. Harvard), and has written opinion pieces for publications such as The Washington Post and The Baltimore Sun.    Benforado and Hanson are here referring to the clash of our old – ancient perhaps – dispositionalist folk conceptions of will, conscious control, responsibility – and all the other “everyday terms in which we conduct our moral lives” (Dennett) – with the promise and threat of the developing mind sciences, particularly as applied to the field of law. Dispositionalism is thereby contrasted with Situationism, that embrace of the new, threatening conceptions of human nature that the mind sciences seem to produce – including sophisticated unconscious mechanisms that guide our action and thought. The following is a strong formulation of Situationism:

Situationism is premised on the social scientific insight that the naïve psychology—that is, the highly simplified, affirming, and widely held model for understanding human thinking and behavior—on which our laws and institutions are based is largely wrong. Situationists (including critical realists, behavioral realists, and related neo-realists) seek first to establish a view of the human animal that is as realistic as possible before turning to legal theory or policy. To do so, Situationists rely on the insights of scientific disciplines devoted to understanding how humans make sense of their world—including social psychology, social cognition, cognitive neuroscience, and related disciplines—and the practices of institutions devoted to understanding, predicting, and influencing people’s conduct—particularly market practices. (from About Situationism; my emphasis)

Do those embracing the old dispositionalist paradigm – which is just about all of us to some degree – accept with inquisitive grace the new findings of scientific discovery?  Well, of course not. Dennett’s observations about cognitive science are directly applicable to this broader tension played out in economics and law. After replacing the phrase ‘cognitive science’ with commensurate field-specific language, Dennett’s admonition is no less apt:

It is worth remembering that the main reason everybody – really, just about everybody – is fascinated with, and troubled by, work [in the mind sciences that is referenced by Situationist scholars] is that it so manifestly promises or threatens to introduce alien substitutes for the everyday terms in which we conduct out moral lives.  Will we still have free will?  Will we still be conscious, thinking agents who might be held responsible?

 

2.2 Academic Backlash: Sniping From TheTrees

Benforado and Hanson trace three movements of the “academic backlash” provoked by threatening situationist findings over the last three decades. The final and third movement is what we find today, incarnated principally by Philip Tetlock,  Professor of Organizational Behavior for the School of Business at Berkley (PhD Psychology, Yale).

Three other formidable scholars have published criticism of situationist research, all at some point co-authoring with Tetlock: Hal Arkes, professor of psychology at Ohio State University; Gregory Mitchell, a previous student of Tetlock with a recent residency at University of Virginia School of Law; and Amy Wax,  Professor of Law at the University of Pennsylvania (M.D. Harvard Medical and J.D. from Columbia Law School).

Citations provided by Benforado and Hanson reveal Tetlock’s name attached to all the suspicious kinds of moves found in the rhetorical backlash. Benforado and Hanson explain these moves in terms of a common thread of unconscious “naive cynicism” motivating all three backlash movements to situationist findings. (‘Naive cynicism’ references mechanisms very broad in application, as they have significant commonality with the social mechanisms I have detailed in a significantly different setting: The Kirk of North Idaho.)

Tetlock is a professor of Business and is currently offering his services as an expert witness on these issues, which I found advertised at AIM Experts.com: “Your source for experts, consultants & litigation support services.”  Tetlock’s web page reads: “Expert Witness on the hypothesized power of implicit prejudice/stereotyping in the work place.”  For my purposes here, then, I will not fill up Wood real-estate interacting with his individual work, since a situational, interdisciplinary account warrants (on my view) a more investigative, and therefore more laborious approach to be undertaken in the future or by someone else.  However, as will be seen, Tetlock haunts the work of the other co-authoring scholars and so he will be addressed at least implicitly here. Hal Arkes’s role in all this remains ambiguous to me and in my brief research, including Benforado and Hanson’s article, I have not found a significantly influential connection. In what follows then, I address the scholarship of Wax and Mitchell, paying special attention to work following Benforado and Hanson’s article.

_____________

 

3.1.1 Naive Cynicism of Amy Wax

Wax co-authored an Op-Ed with Tetlock for the Wall Street Journal, titled ‘We Are All Racists at Heart’ (December 1st, 2005), which is a primary source for Benforado and Hanson’s argument.

According to Wax and Tetlock while on Wall Street: “Some psychologists”, given their interest in implicit bias not fully predicted by verbal avowal, have refused to find sharp declines in racial prejudice “a cause of celebration”.  Celebration?

Cel – e – brate good times, Come On!

What else better should mind researchers occupy themselves with? After all, 2005 was a prosperous year for all the Empire’s brothers and sisters and it has been forty years since we were willing to prosecute the first rape of a black woman in the United States. We have reached such pinnacles of justice today, we might soon be ready to defend the rape of an Indian woman.  I can hear George W. Bush chiming in with Wax and Tetlock: “what a bunch of whiners”.

Wax and Tetlock go one: “Some psychologists” have simply “expanded the definition of racism to include any endorsement of politically conservative views grounded on the values of self-reliance and individual responsibility.” “Racists could be identified by ignoring expressed beliefs and tapping into the working of the unconscious mind”. Wax and Tetlock conclude:

. . . facts have nothing to do with it. What began as science has morphed into unassailable faith. However we think, feel or act, and however much apparent progress has been made, there is no hope for us. We are all racists at heart.”

Benforado and Hanson point out that this is a “misleading” summary of implicit bias theory. I think this is putting it mildly.  This is an implicit ridiculing of whatever legitimate science is currently underway with respect to the important influence that unconscious knowledge structures have on our conscious thought and action. This is done by means almost purely rhetorical in nature. The less rhetorical, direct claim – that implicit bias theory seeks to increase the findings of overt ‘racism’ – is in fact opposite of reality.

As Benforado and Hanson have delineated, some nefarious group of ‘others’ must be imaginatively constructed, others who have left science behind altogether in order to further a political ideology that stands apposed to all ‘our’ conservative values. This is quintessential naive cynicism: “Unreasonable outgroup members are attacking us, our beliefs, and the things we value.”  The reader is given no linguistic cue, not one subtle hint, that there might be a distinction made between these cunning radicals lurking in the nearby dark woods and any research currently in session in the institutions of higher learning. Why is this so? Because it must be so.  To offer even a passing glance at such a distinction would undercut the entire rhetorical effect of Wax and Tetlock’s journalism.

It is of interest to me that this cowboy journalism is found in the Wall Street Journal and co-authored by a business professor that also acts as an “Expert Witness on the hypothesized power of implicit prejudice/stereotyping in the work place” (Tetlock’s Homepage, October 10, 2009, linked above). This might help to explain the peculiar focus of this Op-Ed.  Wax and Tetlock expand the argument: “Because most of us are biased, these individuals claim, we can safely assume that every aspect of social life — every school, institution, organization and workplace — is a bastion of discrimination.” This is a convenient reductio ad absurdum, with a pleasant “safely assume” to help it go down. Given what “these individuals” claim – these anti-conservative wolves feigning the cloth of the lab scientist – it is perfectly safe to assume that every “school, institution, organization, and workplace” is a “bastion of discrimination.”  So then, with a correction of facts and a more sober testimony, it implicitly follows that, at least on the principles and research and publishing of these ‘others’, no workplace is a bastion of discrimination.

 

3.1.2 Wax’s Recent Work

Yet, Wax has apparently distanced herself from this rhetorical approach in these leaner years. In “The Discriminating Mind: Define it, Prove it” (Connecticut Law Review, Vol. 40, Pg. 979, 2008), Wax notes Tetlock’s and Arkes’ criticism of IAT (Implicit Association Test): Wax and Tetlock question if the IAT is really a test of “prejudice, bias or racism in the ordinary sense of those words” as well as if “failing” the IAT indicated negative association to “spring from hostility.”  In reality, at least to my own prima facie educated guess - to say that the IAT is not a test of ‘racism’ or ‘hostility’ – interpreted naturally . . . naturally – is tautological. So thankfully, Wax now acknowledges that these questions “miss the point.”  Wax might  dismiss situationist research by preferring talk of the primacy of observable action over  talk of unconscious bias, but she does so with methodological grace:

. . . Attempts to blame disparities in social outcomes by race or sex on unconscious bias must be approached with caution in the current climate. Without hard evidence, sweeping and categorical claims of unconscious stereotyping are unwarranted. The extent, direction, magnitude, and even existence of unconsciously motivated behaviors against disfavored groups cannot be assumed. Rather, such assertions must be demonstrated. This necessarily requires the careful and patient accumulation of data, as well as rigorous, comprehensive, and sophisticated examinations of existing facts of social life.

So in the end, we are left with little more than a collegial “caution”, an approach fully consistent with Situationism’s habit to establish first “a view of the human animal that is as realistic as possible before turning to legal theory or policy” [again, my emphasis].  It would seem that Wax still – perhaps only unconsciously – distances herself from the core of the mind sciences, but “accumulation of data” does at least covenant her to the New Enlightenment.

This alternative rhetorical approach is amplified in a more recent article: ‘Stereotype Threat: A Case of Overclaim Syndrome?’ (U of Penn Law School, Public Law Research Paper No. 08-14)   Wax proposes “new ST [Stereotype Threat] research methodology that would help to address unanswered questions about the significance of ST as compared to other possible causes of observed gaps.” Such a proposal, if constructively intended to guide current science, fits well with Dennett’s frame for interdisciplinary research.
3.2.1 Greg Mitchell’s Naive Cynicism

I have slightly different news for Mitchell. Virginia law has recently decreed how Mitchell, their newly received faculty member, will contribute to the prestige of their institution:

Tetlock not only added to Mitchell’s store of knowledge, but he also had a profound influence on how Mitchell approaches every scholarly question . . . In a relatively short period of time, Mitchell has emerged as one of the most thoughtful, rigorous, and provocative participants in debates over the use of empirical studies in law and legal scholarship. It has taken him even less time to become one of the most valued members of the Virginia faculty, which he joined just two years ago. (The Promise and Limitations of an Empirical Approach to Law)

Mitchell therefore has an important task ahead, since the opposition is challenging

the sincerity of the tolerant attitudes that many people in early 21st-century America claim to possess (creating the implication that managers are far more biased than they . . .  are willing to admit) and a macro, neo-institutionalist critique that challenges the sincerity of organizational efforts to check prejudice. . .

With such claimed sincerity on the line, Mitchell no doubt has some important work to do at Virginia Law.  I am beginning to wonder if fallacious rhetorical framing is a primary method of aggrandizement for academic legal careers and academic institutions!  Recall Benforado and Hanson’s concluding statement: “Legal scholars, lawyers, and law students must also consider the operation of unseen dynamics around us and within us that may be the critical factors determining winners and losers in our major debates.”

 

3.2.2 Mitchell’s Theory of the Unconscious

Mitchell had a chance to recast his rhetorical renown, as did Wax, with his forthcoming article in McGeorge Law Review, titled ‘Second Thoughts’ [The title is deceiving; no mention is made of Mitchell's 'second thoughts' on this issue].

In this article, Mitchell gives equal prominence to both the conscious and the unconscious mind when conceiving of the law as a cognitive force.  (One can only wonder where he got such a radical idea).  However, Mitchell provides an ad hoc distinction between “first thoughts” and “second thoughts” that reflect the distinction between initial unconscious responses and those unconscious and conscious responses that immediate follow the initial unconscious responses.

Overall, the article was enjoyable and I found myself agreeing more than disagreeing with specific assessments of the role of the unconscious mind and the role of law within the our corporate unconscious. Mitchell concludes the article roundly; after tipping his hat to conscious deliberation, he adds: “But we should also recognize the effects of the law on unconscious and fringe-conscious thoughts, with the law effectively serving as a brooding omnipresence in our heads if not in the sky.”

3.2.3 Greg Mitchell and Amy Wax Part Ways

As nice as this sounds, however, the ad hoc distinction between first thoughts and second thoughts appears to serve only one purpose: to isolate those ‘others’ who make appeal to IAT. Given what I take to be the sophistication of the unconscious mind and the general nature of ongoing research within the mind sciences, this distinction appears to be otherwise entirely arbitrary.  At what millisecond segment do we begin seeing secondary responses as apposed to primary responses?  The distinction is grounded in initial unconscious responses to external stimuli, the first thoughts, precisely what IAT measures. Second thoughts just are all other salient processes, whether supporting or suppressing the effects of first thoughts. As will be seen, this distinction provides an unfalsifiable platform for naive cynicism.

 

3.2.4 Interpreting Mitchell Charitably

However, a trial run at a more charitable interpretation of Mitchell’s argument is available. In fact, Mitchell appears in some places to be furthering a common thesis of the sophistication of the unconscious mind (consistent with John Bargh’s work and the counterbalancing considerations of Suhler and Churchland in ‘Control: Conscious and Otherwise’ Trends in Cognitive Sciences, 13(8), 341-347, 2009).  The role of the unconscious in Mitchell’s theory is prominent:

[W]e now know that bias avoidance can also occur as a result of vague or inchoate thoughts and feelings operating at the fringe of consciousness and even through processes operating fully below the level of consciousness.

And these processes are not dumb. Mitchell cites a lengthy section from Glaser and Kihlstrom’s ‘Compensatory Automaticity: Unconscious Volition Is Not an Oxymoron’ (The New Unconscious 171, 189-90; Ran R. Hassin et al. eds., 2005):

This thesis, and the findings incorporating it, represents a departure from traditional conceptions of the unconscious as passive and reactive, suggesting an unconscious that is, paradoxically, “aware.”

So the unconscious mind is complex, with first thoughts and overriding second thoughts always at play. And the unconscious mind is also, paradoxically, intentional, for example, intentionally “aware”. Surprisingly, and perhaps ironically, I take this as a slightly more accurate approach to the term ‘intentional’ than summarized by Bargh and Morsella in their recent and excellent article ‘The Unconscious Mind’ (Perspectives on Psychological Science, 3, 1, 2008). Bargh and Morsella’s operating definition of the unconscious essentially includes non-intentionality.  (One of my philosophical projects is an account of such intentional ascriptions to the unconscious mind, what I call Explanatory Metaphor theory, which combines the work of Dennett’s intentional stance with metaphor comprehension theory; Bargh and Morsella reference Dennett’s work multiple times [1991, 1995], and so I assume there is plenty of room for discussion on this point).

One possible straightforward implication here is that a responsible, intentional, personal agent may be in many respects sufficiently found below the level of consciousness – or else at the fringe of consciousness – allowing the law to effectively serve –  to quote Mitchell again – “as a brooding omnipresence in our heads if not in the sky.”

On this charitable interpretation – with love believing and hoping all things – all is well and good, and we should invite Mitchell to stand with us as we peer into the amorphous dark wood that stands off in the distance.  But it is possible that this charitable interpretation has been a too blind, bypassing just that dynamic in the anti-situationist literature Benforado and Hanson have sought to bring to our attention.

3.2.5 Mitchell’s Continued Strong Naive Cynicism

On second thoughts then (!): It seems important to point out that Mitchell, in the end, remains ambiguous on the point of the paradoxical intentionality of the unconscious mind and at one juncture concludes only that

legal regulations typically thought of as requiring conscious, intentional thought can be effective even with respect to judgments, decisions, and behaviors that have their origins at the unconscious level.

On my charitable interpretation, the phrase “have their origins at” should be interpreted as something along the lines of “directly produced from”, consistent with the fact that both first and second thoughts may remain below the level of consciousness. But the most natural connotation suggests only an indirect causal influence.  And Mitchell’s more complicated conception of the unconscious mind is clarified through a contrast with the simple-minded opposition:

[C]urrently popular models of judgment and decision-making within antidiscrimination theory and behavioral-law-and-economics theory portray humans in too simplistic a light because these models fail to give sufficient weight to the impact of second thoughts on first thoughts.

If this is all Mitchell’s theory of the unconscious amounts to, then it appears to be trivial, albeit naturally following the ad hoc nature of the distinction between first and second thoughts. As I have found to be the case throughout this anti-situationist literature, the opponent is rarely directly referenced or cited. Popular models appealing to the unconscious mind are the ones expressing simplicity? What models? What scholars?  Likewise, Mitchell points to the darkness in the far off woods and implies the position of the opponent: “[W]e are not captives to our automatic first thoughts”, but rather “employ a variety of corrective second thoughts.”  And “we are not cognitively compelled to dislike women or minorities or react negatively to them as a result of these first- order associations.” ” . . . neglect of the role of second thoughts can lead to perverse effects of legal policy.” Perverse effects no doubt. The idea of being held fully captive and compelled by processes found only milliseconds from the onset of all external stimuli is certainly not a picture of the human animal that permits a meaningful and efficient use of law.

Mitchell does offer a careful summary of situationist research and themes, but no link is provided between this more careful summary and the actual rhetorical opponents that frame the argument. Mitchell summarizes the “new psychological tools” and the work of scholars that “question the intentional actor model” who argue

that judgments made under uncertainty about the facts (e.g., probability judgments, causal inferences) are determined primarily by non-deliberative thought processes based on cognitive heuristics, or mental rules of thumb, rather than by careful application of the laws of probability, the rules of logic, or scientific rules for causal inference. . .

. . . Similarly, in this view, choices occur not through consultation of a stable, well-defined, coherently-ordered menu of preferences and careful deliberation about the costs and benefits of different courses of action weighted by their probability, but through the often unconscious construction and ranking of preferences based on the information presently available in memory and salient to the decision-maker, along with fleeting affective influences.

It is still not clear to me what, precisely, Mitchell finds wrong here. “Fleeting affective influences” could be seen as the result of treating first thoughts in a vacuum devoid of second thoughts; but then Mitchell swings the other way, taking special note of how these “antidiscrimination” scholars point to the “predictable biases in our judgments and decisions”. In this case, first thoughts are not fleeting influences, but now determiners of racism and latent hostility, unchecked by anything like second thoughts. It therefore remains difficult to decipher what Mitchell’s complaint might be regarding the new tools of psychology qua tools of psychology. If Mitchell has no qualms with these new tools, then he is on record implicitly suppressing the advance of cogent scientific research while imagining a scholarly debate where none exists – as he peers out into the dark woods at what would now be entirely unidentified agents.

 

3.2.6 The ‘Others’ Lurking in the Dark Woods

But the worst is yet to come. Immediately following this summary of “a diverse group of scholars”, Mitchell concludes:

The predominant response of behavioral law and economics scholars to evidence of systematic irrational tendencies has been to call for greater governmental regulation of consumer behavior and less reliance on market competition to produce efficient outcomes. But the prescriptions of behavioral law and economics extend far beyond the buyer-seller context. No legal actor has been immune from calls for greater oversight and often greater paternalistic protection from the government: voters, judges, jurors, financial brokers, white- and blue-collar workers, the young and the old, the educated and the uneducated, have all been the subject of regulatory proposals due to their supposed irrational tendencies.

At the blink of an eye, the more careful summary of what appears to be the cogent work of “a diverse group of scholars”, as well as a compatible – albeit counterbalancing – working thesis of the sophistication of the unconscious mind, turns into a precise reference to “unreasonable outgroup members [that] are attacking us, our beliefs, and the things we value.” In this case, the values of liberty and free market are in jeopardy. The article becomes sermonic just here: “No legal actor has been immune from calls” of tyranny; and Mitchell goes on with a soapbox naming of the young and the old, male and female, slave and the free. Although, sadly, no mention is made of the rich and the poor.

And Mitchell is sure to stand his ground over the politics of IAT:

[T]he Implicit Association Test or IAT, tell us nothing about the likelihood of bias occurring at the level of judgments, decisions, or behaviors given the intervening effects of second-order thoughts: To date, no empirical research has established that any particular score on the IAT reliably predicts any particular behavior in any particular setting. [my emphasis]

This is a strong claim.  Does Mitchell support it?  He tries. Mitchell cites Miguel Brendl et al., ‘How Do Indirect Measures of Evaluation Work? Evaluating the Inference of Prejudice in the Implicit Association Test,’ (81 J. Personality & Social Psychol.  760, 761; 2001).  But, according to Mitchell’s own citation, Migguel Brendl et al. have a different message:

[I]ndirect measures of attitudes cannot assess discrimination, because discrimination is overt behavior, not an attitude. Thus, even if a reliable and valid measure of implicit prejudice were developed, additional research would have to establish the link between those measured attitudes and behavior.

But this is an entirely separate issue, a mere note about the legal, working definition of the word ‘discrimination.’ This has little to do with the implications of discovery within the mind sciences, as made clear by Migguel Brendl et al’s acknowledgement that even a fully successful measure of “implicit prejudice” would not assess what we consider the working definition of ‘discrimination.’  Does this mean that such an implicit measure would therefore have no consequence for legal theory? There is no suggestion of this implication here.  And how subtle must the research be to establish “a link” between a confirmed, measured attitude and the stereotypical behavior of that attitude? Subtle enough for a corporation, as defendant, to win a discrimination case? Mitchell’s attempted support for his strong claim unravels further in the footnotes, where Migguel Brendl et al. are cited again:

Gehring and colleagues echo this warning: One must be cautious . . . about claims that any measure provides a direct window into racially biased behavior. This caution is particularly warranted for the IAT: researchers in social psychology disagree about the meaning of IAT scores, yet much research is reported in academic journals and the popular press as if its validity as a measure of racial bias and prejudice were well- established.

A call to caution and a note of disagreement about the meaning of IAT scores tells us close to nothing about Mitchell’s strong claim. Rather, Migguel Brendl et al. display the research frame of the new Wax and of Dennett – the frame of the New Enlightenment – helping scientists “sort it all out, asking, not telling, being tentative, not preemptive” in their criticisms. Mitchell’s naive, confirming cynicism undoubtedly provides a feeling of closure, as well as comfort within the institution of the University of Virginia School of Law; perhaps, then, it should not be too surprising if Mitchell appears to be to be fighting – albeit, likely at the fringe of consciousness, as he likes to put it – the spirit of the literature he offers in support of his preemptive criticism.

 

4.1 Tentatative Conclusion

My tentative conclusion is forthcoming.  For now, I will enjoy my temporary feeling of closure (so get with it Mitchell!), while floating comfortably in an institutional and social vacuum.