the texas defense

In criminal law, the claim that the deceased victim “needed killing” is known as “the Texas defense”, also designated as “misdemeanor homicide”. On Wednesday, 27 August 2014, a jury acquitted David Barajas of murder at the Brazoria County Courthouse in Angleton, Texas. Barajas had been accused of fatally shooting one Jose Banda in December 2012 near Alvin, minutes after a car driven by Banda hit a truck that Barajas and his two sons were pushing after it ran out of gas, killing twelve-year-old David Jr. and eleven-year-old Caleb. Although Banda was found slumped in his seat at the crash site, with a blood alcohol level twice the legal limit and a bullet wound to the head, no witnesses saw a shooting, and no weapon was ever recovered. As the case was about to go to trial, Texas media picked up an analysis by kibitzing Houston defense attorney Joel Androphy: “It’s not the right way to do it, but jurors a lot of times make judgments based on moral responsibility, not legal responsibility.” Amplifying this point, the commentariat cited a case two years earlier, when the grand jury in Lavaca County, Texas, declined to indict the man who admittedly pummeled to death the alleged molester of his 5-year-old daughter.

The Texas defense is arguably a misnomer, given that its definitive statement is found in a 1870 appellate court ruling in Kentucky:

Speaking of assured and continual danger to life, this court, in the case in 2 Duvall, defined the principle of self-defense as follows: “Like the sword of Damocles, the threatened danger is continually impending every moment and everywhere. The threatened man may be waylaid or otherwise attacked unawares without the possibility of defense or of escape, and may never, day or night, feel safe, or actually be so, while his enemy lives, who whenever he may see him or wherever he may find him may be anxious and able to kill him. And does either human or divine law require such prolonged agony and peril; or can the best and most prudent men suicidably forbear to strike for riddance, if they have the courage to defend themselves, in the only way of secure and lasting escape?”
    Now if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only safe security, does not the rationale of the principle as thus defined allow him to kill that enemy whenever and wherever he gives him a chance and there is no sign of relenting? But before a jury should acquit they should be well satisfied that the killing was not the offspring of bad passion, but solely of a thorough and well-founded belief that it was necessary for security. And here lies the danger of misapplication. It is difficult to be assured that the act was thus necessary and done in good faith. Of that, however, the jury and not the court must judge; and in that judgment they can not be too self-poised and careful before they conclude that the peril of the accused was imminent and incessant, and that he, well assured of it, honestly believed that his only safe remedy was to destroy the power to execute the threats. And if he was authorized to believe and did considerately apprehend that his own exile or the death of his persevering enemy, watching to kill him, was, like the tabula in naufragio, the only safe mode of rescue, might he not lawfully choose his remedy and throw his enemy overboard? Why should he be required still to wait an assault and to endure longer haunting and hazard when he might at any moment become the victim of his own forbearance, and when self-defense might be impossible or unavailing? Why let the sword still hang over him? Why not remove it out of sight when he may, and not passively linger until it unexpectedly falls and strikes his heart unresisted? The recognition of the perfect right to do so in such a crisis appears to us consistent with both principle and policy. It seems to us conservative. It might afford more security and prevent more assassinations than the lame law of punishment ever could, and the manly and opportune assertion of this universal birthright may teach the reckless who thus maliciously beset the pathway of the peaceable that they will be likely to bring destruction on their own heads. This preventive principle will go hand in hand with civilization and philosophical jurisprudence as a palladium of personal security and social order and peace. Properly guarded, it may do more good than harm.

Carico v. Commonwealth, 70 Ky. (7 Bush) 124 (1870)

A more casual application of the same principle took place in the same year, well above the Mason-Dixon line in Anderson, Indiana:

    Louis Titherington was a cab driver who lived in the house now occupied by Dr. J.W. Fairfield as a sanitarium at the corner of Meridian and Thirteenth streets.
    Titherington went to his home on the 19th of October, 1870, in an intoxicated condition and became engaged in an altercation with his wife and sister-in-law, a Miss Jenkins, who lived in the family. He was in the act of severely chastising Miss Jenkins, and, it is said, had whipped his wife, when Daniel Jenkins, her brother, came into the house and ordered him to desist in his abuse, when he turned upon Jenkins and made threats of violence, whereupon Jenkins drew a revolver and opened fire upon Titherington, filling his body with leaden missiles, causing almost instant death. Jenkins was placed under arrest and indicted by the Grand Jury, and on a trial in the Circuit Court was acquitted on the ground that the killing was justifiable.
    On the trial was exhibited a large lock of hair which Titherington had pulled out of the head of one of the women. Titherington was a familiar personage on the streets of Anderson for a quarter of a century, having been at one time a half owner of the bus and transfer line, which was a good paying property.
    “Lew,” as he was known by the people, was not a bad man when not drinking, but disposed to be unruly when imbibing to excess. He was mixed up in a great many street fights and other troubles, the result of too much liquor. His headquarters for many years before his marriage was at the old United States Hotel. He was known by every traveling man from New York to San Francisco who stopped in Anderson.
    John Alderman was for many years his partner and they made money fast and spent it with lavish hands. One of the jurors who tried Jenkins said after the trial was over that “the jury thought that he was not exactly justified, but that Titherington needed killing anyway, and that they just voted to let him off.”
    Neal Daugherty was City Marshal at the time of the killing and arrested Jenkins. Andrew J. Griffith was Sheriff and Randle Biddle his deputy.
    Titherington left a widow, but no children. He was a brother to Robert Titherington, who yet lives in Anderson.

—John La Rue Forkner and Byron H. Dyson, Historical Sketches and Reminiscences of Madison County, Indiana, 1897, pp. 511-512

    Unsurprisingly, the Texas defense was popular with the Texas Rangers. In his memoirs, James B. Gillett describes its application to a fellow Ranger:

After our return from our month’s scout in Mexico, Captain [George W.] Baylor received a new fugitive list from the Adjutant-General, and in looking over its pages my eyes fell on the list of fugitives from Hamilton County, Texas. Almost the first name thereon was that of James Stallings with his age and description. I notified Captain Baylor that Stallings was a fugitive from justice. Baylor asked me what Stallings had been indicted for and I replied for assault to kill.
    “Well, maybe the darned fellow needed killing,” replied the captain. “Stallings looks like a good ranger and I need him.”
Not many days after this I heard loud cursing in our quarters and went to investigate. I found Stallings with a cocked pistol in his hand standing over the bed of a ranger named Tom Landers, cursing him out. I could see Stallings had been drinking and finally persuaded him to put up his pistol and go to bed. The next morning I informed Captain Baylor of the incident, and suggested that if we did not do something with Stallings he would probably kill someone. The captain did not seem inclined to take that view. In fact, I rather believed Captain Baylor liked a man that was somewhat “on the prod,” as the cowboys are wont to say of a fellow or a cow that wants to fight.

—James B. Gillett, Six Years with the Texas Rangers, 1875-1881, New Haven: Yale University Press, 1925, pp. 264-265

Melville Davisson Post, a prolific chronicler of crime in Harrison County, West Virginia, provided a popular account of the Texas defense in 1897:

If a Mexican was so short-sighted as to slip his knife into a tenderfoot, some one shot the Mexican, and the crowd “lickered up.” If the faro dealer killed his man, it was usually because the man needed killing, and certainly the faro dealer was the best judge of this. On the contrary, if one shot the dealer, this was considered a public calamity, demanding an explanation, since the dealer was a quasi public functionary, and the convenience of the citizen required that the game should continue. One’s life was perhaps the cheapest thing below the Central Pacific Railroad, and it was entirely the duty of the individual to see that it was maintained. If one was unsteady on the trigger, or caught napping on the draw, one was held to have died by virtue of contributory negligence.
    To be sure there was law, and machinery for its execution; but the machinery was liberal, and had ideas of its own, and the law adhered with supreme unconcern to its maxim—De minimis non curat lex.

—Melville Davisson Post, The Man of Last Resort, G.P. Putnam’s Sons, 1897, pp. 62-63

In 1906, Ambrose Bierce pointed out the deficiency of the underlying principle: “HOMICIDE, n. The slaying of one human being by another. There are four kinds of homicide: felonious, excusable, justifiable, and praiseworthy, but it makes no great difference to the person slain whether he fell by one kind or another—the classification is for advantage of the lawyers.” And yet no advantage of the lawyers is to be lost on the blameless slayer. As a red-blooded American, I wish and hope for naught but praiseworthy homicides to take place in our fair land. Short of that, may all our righteous homicides be found praiseworthy by the juries of our peers.

middle-aged degeneracy

The excessive dependence of the Middle Ages upon the past is part of that Golden Age complex which besets most civilizations, though medieval men carried it to an unusual degree. They believed that they were “little men in the twilight of the world” or “dwarves sitting on the shoulders of giants” (the ancients). Both the primitive Church and Augustan Rome loomed out of the mist of the past as towers of civilization from which society had fallen, no matter if the Augustan Romans saw themselves as degenerates from the time of Cato, who in turn bewailed the lost Saturnia regna. Had the medieval mind looked only backwards to Eden, medieval thought would have been primitivistic; it would have had no idea of progress. But the fact that the incarnation came after the fall, and the resurrection after the crucifixion, was productive of hope. Nonetheless, exaggerated respect for the past caused several medieval eccentricities, among them the curious practice of reverse plagiarism. A modern plagiarist takes the writings of a famous man and passes them off as his own; with greater modesty, a medieval writer was likely to gain an audience for his own writings by attaching to them the name of a great pope or Father. Their worship of the past checked originality, just as our own worship of everything new promotes superficiality. The use of the word “primitive” is instructive. To us it means crude and barbaric; but through the time of Samuel Johnson its connotation was favorable: the Good Old Days.

another win for human rights

As of today, citizens of California no longer need any more of an excuse to be licensed to carry a gun than to be licensed to drive a car.

Plaintiffs in Richards v. Prieto had argued that Yolo County’s Sheriff’s policy, in light of the California regulatory regime as a whole, abridges the Second Amendment right to bear arms because its definition of “good cause” prevents a responsible, law-abiding citizen from carrying a handgun in public for the lawful purpose of self-defense. Yolo County’s policy provided that “self protection and protection of family (without credible threats of violence)” are “invalid reasons” for requesting a concealed handgun carry permit. The district court concluded that Yolo County’s policy did not infringe Richards’ Second Amendment rights and denied Richard’s motion for summary judgment while granting the MSJ of Sheriff Ed Prieto. Today, Justice Diarmid O’Scannlain reversed and remanded this ruling on behalf of the United States Court of Appeals for the Ninth Circuit.

Thus the court granted the plaintiffs’s demands:

  1. Declaratory relief that the “good moral character” and “good cause” provisions of California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit; and
  2. An order permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or anticipation with them who receive actual notice of the injunction, from enforcing the “good moral character” and “good cause” requirements of California Penal Code § 12050 against handgun carry permit applicants who seek the permit for self-defense and are otherwise qualified to obtain a handgun carry permit under that section.

It’s all over for hoplophobes, but for the shouting.

all in the family

“A man is known by the company he keeps, and also by the company from which he is kept out.”

—Grover Cleveland

Following in the footsteps of his daughterfucking partner Min Zhu, Subrah Iyar credits his daughters Leena and Nikhita with inspiring his current business venture. Five years ago, Iyar vowed not to waste any time getting to know his daughters better now that his workflow has leveled off. Which brings us to the question: How much “better” did Subrah get to know his daughters before pumping up his workflow? We shall surely find out the next time I pay him a visit.

Dig the now avatar of Ganesha. Because daughterfuckers are known by the company they keep, and also by the company from which they are kept out.

On 2 May 2005 I banished Min Zhu from his company and my country. Start packing, Iyar.

long after heraclitus

Das Ziel des Rechts ist der Friede, das Mittel dazu der Kampf. So lange das Recht sich auf den Angriff von Seiten des Unrechts gefasst halten muss–und dies wird dauern, so lange die Welt steht–wird ihm der Kampf nicht erspart bleiben. Das Leben des Rechts ist Kampf, ein Kampf der Völker–der Staatsgewalt–der Stände–der Individuen.
    Alles Recht in der Welt ist erstritten worden, jeder wichtige Rechtssatz hat erst denen, die sich ihm widersetzten, abgerungen werden müssen, und jedes Recht, sowohl das Recht eines Volkes wie das eines Einzelnen, setzt die stetige Bereitschaft zu seiner Behauptung voraus. Das Recht ist nicht blosser Gedanke, sondern lebendige Kraft. Darum führt die Gerechtigkeit, die in der einen Hand die Wagschale hält, mit der sie das Recht abwägt, in der andern das Schwert, mit dem sie es behauptet. Das Schwert ohne die Wage ist die nackte Gewalt, die Wage ohne das Schwert die Ohnmacht des Rechts. Beide gehören zusammen, und ein vollkommener Rechtszustand herrscht nur da, wo die Kraft, mit der die Gerechtigkeit das Schwert führt, der Geschicklichkeit gleichkommt, mit der sie die Wage handhabt.
    Recht ist unausgesetzte Arbeit und zwar nicht etwa bloss der Staatsgewalt, sondern des ganzen Volkes. Das gesammte Leben des Rechts, mit einem Blicke überschaut, vergegenwärtigt uns dasselbe Schauspiel rastlosen Ringens und Arbeitens einer ganzen Nation, das ihre Thätigkeit auf dem Gebiete der ökonomischen und geistigen Produktion gewährt. Jeder Einzelne, der in die Lage kommt, sein Recht behaupten zu müssen, übernimmt an dieser nationalen Arbeit seinen Antheil, trägt sein Scherflein bei zur Verwirklichung der Rechtsidee auf Erden.
    Freilich nicht an Alle tritt diese Anforderung gleichmässig heran. Unangefochten und ohne Anstoss verläuft das Leben von Tausenden von Individuen in den geregelten Bahnen des Rechts, und würden wir ihnen sagen: Das Recht ist Kampf – sie würden uns nicht verstehen, denn sie kennen dasselbe nur als Zustand des Friedens und der Ordnung. Und vom Standpunkt ihrer eigenen Erfahrung haben sie vollkommen Recht, ganz so wie der reiche Erbe, dem mühelos die Frucht fremder Arbeit in den Schoos gefallen ist, wenn er den Satz: Eigenthum ist Arbeit, in Abrede stellt. Die Täuschung Beider hat ihren Grund darin, dass die zwei Seiten, welche sowohl das Eigenthum wie das Recht in sich schliessen, subjectiv in der Weise auseinanderfallen können, dass dem Einen der Genuss und der Friede, dem Andern die Arbeit und der Kampf zu Theil wird.
    Das Eigenthum wie das Recht ist eben ein Januskopf mit einem Doppelantlitz; Einigen kehrt er bloss die eine Seite, Andern bloss die andere Seite zu, daher die völlige Verschiedenheit des Bildes, das beide von ihm empfangen. In Bezug auf das Recht gilt dies wie von einzelnen Individuen, so auch von ganzen Zeitaltern. Das Leben des einen ist Krieg, das Leben des andern Friede, und die Völker sind durch diese Verschiedenheit der subjectiven Vertheilung beider ganz derselben Täuschung ausgesetzt, wie die Individuen. Eine lange Periode des Friedens – und der Glaube an den ewigen Frieden steht in üppigster Blüthe, bis der erste Kanonenschuss den schönen Traum verscheucht, und an die Stelle eines Geschlechts, das mühelos den Frieden genossen hat, ein anderes tritt, welches sich ihn durch die harte Arbeit des Krieges erst wieder verdienen muss. So vertheilt sich beim Eigenthum wie beim Recht Arbeit und Genuss, aber für den Einen, der geniesst und im Frieden dahinlebt, hat ein Anderer arbeiten und kämpfen müssen. Der Frieden ohne Kampf, der Genuss ohne Arbeit gehören der Zeit des Paradieses an, die Geschichte kennt beide nur als Resultate unablässiger, mühseliger Anstrengung.
    Diesen Gedanken, dass der Kampf die Arbeit des Rechts ist und in Bezug auf seine praktische Nothwendigkeit sowohl wie seine ethische Würdigung auf dieselbe Linie mit der Arbeit beim Eigenthum zu stellen ist, gedenke ich im Folgenden weiter auszuführen. Ich glaube damit kein überflüssiges Werk zu thun, im Gegentheil eine Unterlassungssünde gut zu machen, die sich unsere Theorie (ich meine nicht bloss die Rechtsphilosophie, sondern auch die positive Jurisprudenz) hat zu Schulden kommen lassen. Man merkt es unserer Theorie nur zu deutlich an, dass sie sich mehr mit der Wage als mit dem Schwert der Gerechtigkeit zu beschäftigen hat; die Einseitigkeit des rein wissenschaftlichen Standpunktes, von dem aus sie das Recht betrachtet, und der sich kurz dahin zusammenfassen lässt, dass er ihr das Recht weniger von seiner realistischen Seite als Machtbegriff, als vielmehr von seiner logischen Seite als System abstracter Rechtssätze vor Augen führt, hat meines Erachtens ihre ganze Auffassung vom Recht in einer Weise beeinflusst, wie sie zu der rauhen Wirklichkeit des Rechts gar wenig stimmt – ein Vorwurf, für den der Verlauf meiner Darstellung es an Belegen nicht fehlen lassen wird.
    –Rudolph von Jhering, Der Kampf um’s Recht, 1884
The end of the law is peace. The means to that end is war. So long as the law is compelled to hold itself in readiness to resist the attacks of wrong—and this it will be compelled to do until the end of time—it cannot dispense with war. The life of the law is a struggle,—a struggle of nations, of the state power, of classes, of individuals.
    All the law in the world has been obtained by strife. Every principle of law which obtains had first to be wrung by force from those who denied it; and every legal right—the legal rights of a whole nation as well as those of individuals—supposes a continual readiness to assert it and defend it. The law is not mere theory, but living force. And hence it is that Justice which, in one hand, holds the scales, in which she weighs the right, carries in the other the sword with which she executes it. The sword without the scales is brute force, the scales without the sword is the impotence of law. The scales and the sword belong together, and the state of the law is perfect only where the power with which Justice carries the sword is equalled by the skill with which she holds the scales.
    Law is an uninterrupted labor, and not of the state power only, but of the entire people. The entire life of the law, embraced in one glance, presents us with the same spectacle of restless striving and working of a whole nation, afforded by its activity in the domain of economic and intellectual production. Every individual placed in a position in which he is compelled to defend his legal rights, takes part in this work of the nation, and contributes his mite towards the realization of the idea of law on earth.
    Doubtless, this duty is not incumbent on all to the same extent. Undisturbed by strife and without offense, the life of thousands of individuals passes away, within the limits imposed by the law to human action; and if we were to tell them: The law is a warfare, they would not understand us, for they know it only as a condition of peace and of order. And from the point of view of their own experience they are entirely right, just as is the rich heir into whose lap the fruit of the labor of others has fallen, without any toil to him, when he questions the principle: property is labor. The cause of the illusion of both is that the two sides of the ideas of property and of law may be subjectively separated from each other in such a manner that enjoyment and peace become the part of one, and labor and strife of the other. If we were to address ourselves to the latter, he would give us an entirely opposite answer.
    And, indeed, property, like the law, is a Janus-head with a double face. To some it turns only one side, to others only the other; and hence the difference of the picture of it obtained by the two. This, in relation to the law, applies to whole generations as well as to single individuals. The life of one generation is war, of another peace; and nations, in consequence of this difference of subjective division, are subject to the same illusion precisely as individuals. A long period of peace, and, as a consequence thereof, faith in eternal peace, is richly enjoyed, until the first gun dispels the pleasant dream, and another generation takes the place of the one which had enjoyed peace without having had to toil for it, another generation which is forced to earn it again by the hard work of war. Thus in property and law do we find labor and enjoyment distributed. But the fact that they belong together does not suffer any prejudice in consequence. One person has been obliged to battle and to labor for another who enjoys and lives in peace. Peace without strife, and enjoyment without work, belong to the days of Paradise. History knows both only as the result of painful, uninterrupted effort.
    That, to struggle, is, in the domain of law, what to labor, is, in that of economy, and, that, in what concerns its practical necessity as well as its moral value, that struggle is to be placed on an equal footing with labor in the case of property, is the idea which I propose to develop further below. I think that in so doing I shall be performing no work of supererogation, but, on the contrary, that I shall be making amends for a sin of omission which may rightly be laid at the door of our theory of law; and not simply at the door of our philosophy of law, but of our positive jurisprudence also. Our theory of law, it is only too easy to perceive, is busied much more with the scales than with the sword of Justice. The one-sidedness of the purely scientific standpoint from which it considers the law, looking at it not so much as it really is, as an idea of force, but as it is logically, a system of abstract legal principles, has, in my opinion, impressed on its whole way of viewing the law, a character not in harmony with the bitter reality. This I intend to prove.
    –Rudolph von Jhering, The Struggle for Law, translated by John J. Lalor, 1915

history and law: from rhetoric to reason

—for Carlo Ginzburg


In his comparison of poetry to history, Aristotle points out that their difference is not one between verse and prose. After all, the writings of Herodotus would be a species of history with meter no less than without it. The real difference that distinguishes them is between telling what might be and what has been. Notoriously, the Stagirite takes this distinction for the reason why poetry is more scientific [philosophôteron] and more serious [spoudaioteron] than history. For poetry tells of general truths, which is the sort of thing that a certain type of man will do or say either probably or necessarily [to eikos ê to anankaion]. By contrast, history tells of particular facts such as what Alcibiades did or suffered [epraxen ê ti epathen].[i]

Yet as Aristotle inaugurates philosophy with his account of general truths pertaining to the words and deeds of a certain type of man, his teacher Plato by these lights counts for no less of a poet without meter, than he might have appeared with it. Let us bear in mind Aristotle’s contrast in the following exploration of two poetic archetypes, Socrates and Gorgias, in their dramatic debate about the virtues of rhetoric. Their wrangle recorded in Plato’s Gorgias, and the techniques of Thucydides’ History of the Peloponnesian War, will ground this inquiry into the relation of rhetoric to reason.


Myles Burnyeat summarized his account of Aristotle on the rationality of rhetoric in the form of question and answer: “We would like to know under what conditions it is appropriate for a speaker to advance, and for the audience to accept, a sign argument that is deductively invalid? The only answer we get from the Rhetoric is: when it is convincing.”[ii] For Socrates, this answer will not do. Nothing short of certainty will satisfy him. He engages in arguments by alternating between the roles of the speaker and his audience. He aims to reveal hitherto unrecognized errors to his interlocutors, by guiding them to infer contradictions from their theses or to deduce their antitheses. He has no use for conviction unwarranted by indisputable demonstration. In Socratic dialectic, only valid arguments are worth being advanced and accepted, and their advancement and acceptance are warranted only in the pursuit of just ends. Socrates conveys his dialectic reasoning through a technique of maieutics, his service to his interlocutors’ ideas being a counterpart to a midwife assisting childbirth. He coaxes conscious understanding from latent ideas in the course of a dialogue conducted as a series of pointed questions and brief answers. The progress of this dialogue depends on achieving unshakeable consensus on each successive point. This elenctic protocol allows discovery through reconciling or choosing between competing viewpoints. By following it, Socrates aims to achieve mutual understanding through stepwise accrual of agreement. In the ideal case, a mathematical proof ensures absolute certainty.[iii]

In his historical conduct, Gorgias the sophist neither restricted his means of persuasion to demonstrative, geometric reasoning, nor imposed moral constraints on its aims.[iv] Although in his Apology, Plato has Socrates name Gorgias of Leontini alongside Prodicus of Ceos and Hippias of Eos as sophists, or commercial purveyors of wisdom, the eponymous character in Gorgias modestly identifies himself as a rhetorician, in setting out to praise the role of rhetoric in society.[v] Associating his trade with liberty and power in a democracy, he defines rhetoric as an art of speeches [logoi] that aim to produce persuasion regarding the just and unjust.[vi] Rhetorical speeches are about the greatest and the best human affairs, which is the cause of freedom for men and the basis of rule over others in their city. They are equally fit to persuade judges in a law court, senators in the Council chamber, assemblymen in the Assembly, and the multitude in common political gatherings.[vii]

In fact, rhetorical ability counted for a great deal in the functioning of Athenian democracy. Most men active in politics sought training, and vied for recognition, as orators. In the best public venues, rhetoric was recognized as the discipline most suited for directing human affairs.[viii] But high demand inspired suspicion. By stressing the nature of rhetoric as an instrument of persuasion, Gorgias lays himself open to the charge that rhetoric aims at belief without knowledge. His examples of Themistocles and Pericles aggravate this weakness. The Long Walls were built to link Athens securely to its harbors at Piraeus and Phalerum. The passage they secured ensured that the city could not be encircled by an invading army and besieged by land alone. After the Persian Wars reduced them to rubble, Sparta pressed Athens to stop rebuilding her walls, lest they create a base for another Persian invasion. But advocacy by Themistocles and Pericles eventually caused their reconstruction.[ix] These politicians employed their rhetorical powers to advise Athenians on building their walls; yet they were neither architects nor stonemasons.[x] Thus Socrates turns Gorgias’ example against its maker, who had disclaimed orators’ need to know how things really stand with things themselves, requiring them only to discover some trick of persuasion, so as to appear to the unknowing to know more than those who know.[xi] Rebutting this claim, Socrates suggests that in employing their rhetorical powers, these politicians aimed only at accommodating people’s appetites [epithumiai]. He neglects to point out that in promoting public works, Themistocles had to argue against distributing their budget among the people. Nonetheless, he succeeds in establishing that in the long term Pericles was impelled by agenda to ratify and satisfy the desires of his constituents rather than guide them towards moral improvement.[xii]

In regard of this moral concern, Gorgias volunteers a critical concession, that rhetoric should not be used indiscriminately against any target, any more so than the fighting arts should be used against friend and foe alike.[xiii] Nevertheless, he goes on to claim that his universal art allows him to surpass experts in their disciplines, that he can persuade the average man to take a stand in any area of knowledge, and that he can do all that without having to learn anything of particular substance.[xiv] Arguing against this thesis, Socrates compels the rhetorician to concede that he both knows the nature of the good and bad, the fine and the shameful, the just and unjust, and places himself in the right regarding each moral distinciton.[xv] At this point Gorgias has committed himself to a fatal contradiction. His admissions imply that the rhetorician must know and respect all moral qualities, while falling short of the capacity to teach them to his students. He shares the philosopher’s knowledge, but not his ability to communicate it. The historical Gorgias was credited with proving three remarkable propositions: that nothing exists; that even if it does exist, it is incomprehensible to man; and that, even if it is comprehensible to anyone, it is not communicable to anyone else.[xvi] A sophist of this caliber would not have been embarrassed by having to profess non-communicable knowledge. But the dignified rhetorician respectfully portrayed within Plato’s dialogue concedes the game for want of sophistical shamelessness, entitling Socrates to conclude that the rhetorician is a manufacturer of groundless belief, and condemn oratory as no art [technê], but a mere knack, a species of flattery altogether lacking in dignity.[xvii]


Unlike the characters of Plato’s dialogue, Aristotle identifies the technical nature of his subject matter in the Rhetoric as the counterpart of dialectic. The Aristotelian speaker advances his argument through a process of proof. He presents considerations regarding his subject, drawing upon all available premisses to reach the desired conclusion, whilst anticipating the objections of his audience. He strives to compel his audience into accepting a convincing argument to bear on its future decisions. Although rhetoric and dialectic both deal with matters that concern all human understanding, they differ in their means of demonstration. A rhetorical argument proceeds from received opinions [endoxa], leaving plenty of wiggle room for filling the gaps in their demonstration. In contrast to rhetoricians, dialecticians’ reasoning proceeds from premisses accepted by their respondents via arguments that their respondents recognize as logically valid. Socratic arguments require reasoned discussion with no room for objection. But whereas the dialectic technique of maieutics only allows a proceeding after a consensus is made, each rhetorical debate remains open to challenge at every step, ruling out conclusive arguments in perpetuity.

Aristotle blames his predecessors for saying nothing about enthymemes that belong to the body of proof, but chiefly devoting their attention to matters outside the subject; for the arousing of prejudice, compassion, anger, and similar emotions having no connexion with the matter in hand, but directed only to the dicast charged with deciding their case. Thus in his account of rhetoric Aristotle avoids both the Gorgian praise and the Socratic condemnation. Though his technique aims to convince through the motion of affects, proofs comprise its only aspect that comes within the province of art, everything else being merely an accessory. Enthymemes are the body of proof.[xviii] Accordingly, in order to understand the nature of proof, we must pin down the nature of enthymemes.

An enthymeme is a sort of argument [sullogismos tis] used in a rhetorical speech.[xix] Its material is derived from four sources, likelihood [eikos], example [paradeigma], necessary sign [tekmêrion], and sign [sêmeion]. Only enthymemes based on necessary signs [tekmêria], can lead to conclusions that are beyond refutation.[xx] But in the general case, these is no need to preempt the possibility of refutation. The rhetorician aims instead to establish his case to the best of his ability, proving it to the satisfaction of an audience [pistis].[xxi] Thus, besides enthymemes, amplifications and examples are admissible techniques for proof:

Speaking generally, of the topics common to all rhetorical arguments, amplification is most suitable for epideictic speakers, whose subject is actions which are not disputed, so that all that remains to be done is to attribute beauty and importance to them. Examples are most suitable for deliberative speakers, for it is by examination of the past that we divine and judge the future. Enthymemes are most suitable for forensic speakers, because the past, by reason of its obscurity, above all lends itself to investigation of causes and to demonstrative proof.[xxii]

It is clear that the aim of Aristotelian rhetoric far exceeds the exiguous means of geometrical demonstration. Thus hyperbole has a place in declamations that take bare facts as undisputed. Likewise, examples that support the contested proposition inductively can be taken as the basis for sustaining it as a probable generalization from particular instances. In practice, such proof succeeds whenever it can sway the audience into making its decisions on the most probable ground. But probability will vary depending on the circumstances. And in cases that fall short of certainty, the rhetorician can only hope and pray that his audience includes no rational detectors of error capable of deriving a contradiction from his thesis or formulating the proof of its antithesis.

By Aristotle’s lights, Socrates’ reasoning in his debate with Gorgias may be faulted for a gratuitous dichotomy, an unwarranted division of a whole into two mutually exclusive parts. Socrates presents to Gorgias with two mutually exclusive choices, implicitly ruling out any unstated alternatives. On the one side stand philosophers and physicians, teachers and artisans. On the other side congregate flatterers and suckers, demagogical politicians and ignorant multitudes. As Socrates claims his place among the former honest and forthright folk, he classifies Gorgias among the latter ilk, purveyors and consumers of baseless belief and unsound fodder. However, must every politician only aim towards gratifying his constituents? Surely Themistocles and Pericles did not have to instruct Athenians in the art of masonry in order to convince them of the importance of building the wall. Their proposals legitimately relied on division of labor that ensured full participation of builders in public debates. Freed thereby from technical concerns, the politicians were right to focus on ensuring security for their constituents. Likewise, as an expert in persuasion, Gorgias should have been able to team up with experts in any discipline related to its subject matter in any particular instance. But even in his modest purview of Plato’s dialogue, the rhetorician is not modest enough to disclaim self-sufficiency. This failure needlessly foredooms his confrontation with the philosopher.


Within the historical perspective, Aristotelian criticism on Socrates and Gorgias finds a basis in Thucydides’ History of the Peloponnesian War. Paul Shorey aptly characterized Thucydides as “a hard-headed […] rationalist who was contemptuous of all teleological and providential interpretations of history and explained everything by natural causes and unchanging human nature—the psychology, motives, and the conflicting interests of men.”[xxiii] Tradition contrasts this portrayal of Thucydides with the received image of Herodotus via a backhanded compliment. Herodotus, simultaneously anointed as the father of history and disparaged as the father of lies, lays himself open to criticism as a casual entertainer, if not outright denunciation as an irresponsible fantasist.[xxiv] Whereas the paternity of scientific history allotted to Thycydides in recognition of his analytical rigor, contains in its technical qualification the gloomy image of a mechanistic skeleton propelled by spasms of cynicism through a morass of tedium. Nonetheless, it would be wrong to withhold credit for Thucydides anticipating the Aristotelian treatment of proof, albeit in a way that conflated probable proof [sêmeion] with necessary proof [tekmêrion].[xxv] This conflation addressed his concern and indicated the way he sought to resolve:

For though the events of remote antiquity, and even those that more immediately precede the war, could not from lapse of time be clearly ascertained, yet the evidences which an inquiry carried as far back as was practicable leads me to trust, all point to the conclusion that there was nothing on a great scale, either in war or in other matters.[xxvi]

Even when the historical facts are obscured by the passage of time, available evidence is the key to inferring their contours. However, in composing his account, Thucydides structures all particular evidence in accordance with the dictates of general principle. Thus the rhetorical arguments in the speeches that Thucydides incorporated in his account of the Peloponnesian war anticipate Aristotle’s idea of rhetorical proof, in being based on the most reputable signs and connecting with the concerns of its audience. Although the composition of each speech is grounded in specific evidence from each individual event, its first allegiance is to the intrinsic logic of their makers’ circumstances:

With reference to the speeches in this history, some were delivered before the war began, others while it was going on; some I heard myself, others I got from various quarters; it was in all cases difficult to carry them word for word in one’s memory, so my habit has been to make the speakers say what was in my opinion demanded of them by the various occasions, of course adhering as closely as possible to the general sense of what they really said.[xxvii]

Thucydides amassed and dispensed historical knowledge not for its own sake, but as a conduit to understanding. Far from resting content in accounts of particular facts such as what men did or what was done to them, he aimed to uncover and convey general truths about human action. Beyond establishing the patterns of masses in turmoil and plots of demagogues clinging to power, his history aimed at dissecting the nature of social upheavals and unmasking demagoguery, indeed at penetrating political power itself. In accounting for moral and political issues, his main device was the speech. The purpose of the ensuing historical writing is to guide its readers toward an understanding of actions and events as determined by the energies that impel human agents and forces that constrain them. Its allegiance to conclusions borne out by factual evidence checked this speculative urge. Thus Thucydides would punctuate factually grounded interpretation, rendered more plausible by his impersonal tone, with spells of invention that attributed discourses to his characters.[xxviii]

The Mytilene debate in Book III is an example of proof presented through the twin means of impersonal narrative and revealing speeches, which are equally embedded into their context.[xxix] The debate takes place on the day following the order for total extermination of the Mytilene men and enslavement of their women and children, agreed upon by the Athenian assembly and dispatched to Mytilene. Thucydides introduces it by noting repentance and reflection on the cruelty of a decree that condemned a whole city to the fate merited only by the guilty, which caused a second assembly to be summoned.[xxx] Both of the following speeches present their makers’ arguments with proofs that illustrate possible consequences and anticipate the audience’ thoughts so as to guide it towards a decision. Cleon argues for executing the original order. He intends this extreme course of action to seal the Athenian victory and forestall future conflicts by deterring other cities from revolt. Mytilene should not have had a chance to build up their arrogance for attack. The right response to their revolt must deter all remaining allies from breaking faith with Athens. Athenians should not let themselves be swayed by clever speeches or large bribes. The penalty for rebellion is death[xxxi] In his response, Diodotus argues from the opposite position, advocating execution only for the leaders of the rebels. He disclaims any motive in regard to the Mytilenians, besides the reasons of state: “Though I prove them ever so guilty, I shall not, therefore, advise their death, unless it be expedient; nor though they should have claims to indulgence, shall I recommend it, unless it be clearly for the good of the country.”[xxxii] He stresses that the discussion should concern the present rather than the future. Athenians should think how Mytilene could be most useful to their polis. Their death would not deter others from breaking laws. On the contrary, it would inspire any future rebels to rule out surrender and fight to the death. A harsh penalty would increase future losses. In dealing with free people, Athens should favor timely prevention over belated punishment, taking tremendous care of them to forestall the mere idea of their revolt.[xxxiii]

Both discourses urge their audience to resist emotions that might sway their rational judgment. Cleon speaks of Mytilenians who had forfeited their right to be pitied by the Athenians in virtue of having rebelled against them. Men should extend their sympathy to friends, not to enemies. He warns the audience against falling prey to their own pleasure in considering the opposite view. Diodotus opens his response by identifying “the two things most opposed to good counsel [as] haste and passion; haste usually goes hand in hand with folly, passion with coarseness and narrowness of mind.”[xxxiv] Thus he responds to the bias towards anger at the Mytilenes’ revolt that would incline his audience to agree with the policy of total extermination and enslavement. Diodotus directs his audience toward their interests in the situation. In this regard, Thucydides’ construction of proof anticipates the rhetoric of Aristotle. His speakers appear to forgo emotional appeals to their audience, concentrating instead on their interests. In the terms of Aristotle’s contrast in the Poetics, they argue as poets, not as historians. But surely this title belongs to the author, in his capacity of the puppetmaster of his characters.


Thus historical arguments depend on uncertainty of actions and events, involving probability as a necessary quality in proof and leaving room for doubt in all future discussions. But there remains a Socratic tradition that seeks geometrical certainty in all matters. Between 1274 and 1305, Ramón Llull envisioned his Ars Magna as a system of mechanical means capable of drawing upon the totality of concepts so as to exhaust all combinatorial alternatives of their logical aggregation. Three and a half centuries later, in the first part of his 1655 treatise De Corpore, entitled “Computatio sive Logica” and intended as an introduction to his entire philosophical system, Thomas Hobbes speculated that the first truths “were arbitrarily made by those that first of all imposed Names upon Things, or received them from the imposition of others.” By this conventionalist approach to the necessary truths of mathematics, Hobbes distinguished Euclid’s axioms from the laws of physics, which are not made by arbitrary definitions. But even as he placed himself outside of its Platonist purview, Hobbes continued the project of Llull by treating human thought as reducible to the manipulation of signs, as a species of calculation.

In 1666, inspired by the analysis of Hobbes, 19-year old Gottfried Wilhelm Leibniz wrote his Dissertatio de Arte Combinatoria, envisioning the characteristica universalis, a method for precise resolution of all human disagreements. He speculated elsewhere that if we had it, we should be able to reason in metaphysics and morals in much the same way as in Geometry and Analysis, because the Symbols would clarify our thoughts that are too vague and too flighty in these matters, where imagination does not help us, if it would not do so through symbols:

Quo facto, quando orientur controversiae, non magis disputatione opus erit inter duos philosophos, quam inter duos Computistas. Sufficiet enim calamos in manus sumere sedereque ad abacos, et sibi mutuo (accito si placet amico) dicere: calculemus.
If controversies were to arise, there would be no more need of disputation between two philosophers than between two accountants. For it would suffice to take their pencils in their hands, and say to each other (with a friend as witness, if they liked): Let us calculate.

Leibniz had no illusions about philosophical reasoning attaining the cogency of mathematical demonstration. There are no Euclidists and Archimedians in mathematics, as there are Aristotelians and Platonists in philosophy. Philosophers lack recourse to mathematical means of discovering possible mistakes. To that end, they require symbols and rules to formalize their thought and make it fit subject for calculation. The outcome of this procedure would endure in perpetuity, just as a mathematical truth, once understood, is never rejected.

Nonetheless, Leibniz acknowledged the limitations of his characteristica universalis. Its means could never suffice for deducing an individual statement like “Caesar was murdered on the ides of March”, because any such statement involves an infinity of causes and each of its constituent individual notions like Caesar comprises an infinity of elements. Nearly twenty years after inaugurating his program, Leibniz became even more skeptical about its prospects, observing that there are people who even reject indisputable arguments.[xxxv]

Leibniz’s empiricist foil John Locke approached the relationship between geometric demonstration and forensic persuasion from the opposite perspective:

As Demonstration is the shewing the Agreement, or Disagreement of two Ideas, by the intervention of one or more Proofs, which have a constant, immutable, and visible connexion one with another: so Probability is nothing but the appearance of such an Agreement, or Disagreement, by the intervention of Proofs, whose connexion is not constant and immutable, or at least is not perceived to be so, but is, or appears for the most part to be so, and is enough to induce the Mind to judge the Proposition to be true, or false, rather than the contrary. For example: In the demonstration of it, a Man perceives the certain, immutable connexion there is of Equality, between the three Angles of a Triangle, and those intermediate ones, which are made use of to shew their Equality to two right ones: and so, by an intuitive Knowledge of the Agreement, or Disagreement of the intermediate Ideas in each step of the progress, the whole Series is continued with an evidence, which clearly shews the Agreement, or Disagreement, of those three Angles, in equality to two right ones: And thus he has certain Knowledge that it is so. But another Man, who never took the pains to observe the Demonstration, hearing a Mathematician, a Man of credit, affirm the three Angles of a Triangle to be equal to two right ones, assents to it; i.e. receives it for true. In which case, the foundation of his Assent is the Probability of the thing, the Proof being such, as for the most part carries Truth with it: The Man, on whose Testimony he receives it, not being wont to affirm any thing contrary to, or besides his Knowledge, especially in matters of this kind. So that that which causes his Assent to this Proposition, that the three Angles of a triangle are equal to two right ones, that which makes him take these Ideas to agree, without knowing them to do so, is the wonted Veracity of the Speaker in other cases, or his supposed Veracity in this.[xxxvi]

Locke’s distinction suggests that appeal to probability differs from demonstrative reasoning in the fit to its audience. The speaker’s discretion is not only in following the injunction laid down near the beginning of Nicomachean Ethics, to achieve that amount of precision, which belongs to its subject matter,[xxxvii] but also in establishing the degree of certainty in proof that his audience requires and appreciates. Some of the most vital political matters that confront the American electorate today admit neither the utmost amount of precision nor the greatest degree of certainty. Mark Bowden articulates a case in point by recommending that torture should be banned but also quietly practiced:

In other words, when the ban is lifted, there is no restraining lazy, incompetent, or sadistic interrogators. As long as it remains illegal to torture, the interrogator who employs coercion must accept the risk. He must be prepared to stand up in court, if necessary, and defend his actions. Interrogators will still use coercion because in some cases they will deem it worth the consequences. This does not mean they will necessarily be punished. In any nation the decision to prosecute a crime is an executive one. A prosecutor, a grand jury, or a judge must decide to press charges, and the chances that an interrogator in a genuine ticking-bomb case would be prosecuted, much less convicted, is very small.[xxxviii]

The availability of the affirmative defense of necessity under common law defines the boundaries of precision and certainty in Anglo-American administration of criminal justice.[xxxix] It suggests that in the extreme circumstances, the best proof we can hope for in forensic arguments is the finding of reasonable doubt by a jury of our peers. Likewise our history has to content itself with provisional verdicts beyond reasonable doubt. As long as this state of affairs endures, the rationalist historian cannot hope to limit his demonstrations to valid arguments proceeding from true premisses.




As Georg Wilhelm Friedrich Hegel admitted in concluding the preface to his Philosophy of Right, philosophy always comes on the scene too late to give instruction as to what the world ought to be: “the owl of Minerva spreads its wings only with the falling of the dusk.” But the historian that follows Thucydides in poiesis, takes his cue from a different bird.

The cock of Apollo crows at dawn.[xli]

—Michael Zeleny, 14 December 2007—5 June 2013

[i] Aristotle, Poetics 1451a36-b11. I cite Aristotle by Bekker’s and Plato by Stephanus’ pagination. Whenever possible, I follow the Loeb editions and translations of classical texts, as available online at the Perseus Project. I thank Chien-Ling Liu for indispensable assistance with historical research and analysis.

[ii] See M.F. Burnyeat, “Enthymeme: Aristotle on the Rationality of Rhetoric”, Essays on Aristotle’s Rhetoric, Berkeley and Los Angeles: University of California Press, 1996, p.109.

[iii] See Socrates’ dialogue with the slave boy in Meno at 82b-85c.

[iv] See the historical background recounted in W.K.C. Guthrie, A History of Greek Philosophy, Volume 3, Cambridge: Cambridge University Press, 1969, pp. 192-200, 269-274; Jonathan Barnes, The Presocratic Philosophers, London: Routledge, 1982, pp. 171-175, 182-3, 470-471, 524-530; Renato Barilli, Rhetoric, translated by Juliana Menozzi, Minneapolis: University of Minnesota Press, 1989, pp. 5-6, 8-9; Brian Vickers, In Defense of Rhetoric, Oxford: Oxford University Press, 1989, pp. 6-7; contrast the disavowal by E.L. Harrison in “Was Gorgias a Sophist?”, Phoenix, Vol. 18, No. 3 (Autumn, 1964), pp. 183-192.

[v] See Apology 19e; compare the more attenuated characterization of Gorgias submitting himself to questioning by all comers on all subjects, including virtue, while disclaiming an ability to teach it, reported in Meno 70b, 71c-d, 73c, 76b-c, 79e, 95c, and 96d.

[vi] See Gorgias, 456a-457b, 449d, 454b.

[vii] See Gorgias 451d, 452d, 452e.

[viii] See W.K.C. Guthrie, op. cit., pp. 50-54, 125, 178-181; Renato Barilli, op. cit, pp. 11-12, 35-36, 45-46, 71.

[ix] See Thucydides, History of the Peloponnesian War, I.89-93; Plutarch, Life of Pericles 33; David M. Lewis, John Boardman, J. K. Davies, and M. Ostwald, editors, The Cambridge Ancient History, Second Edition, Volume 5: The Fifth Century B.C., Cambridge: Cambridge University Press, 1992, pp. 63, 97.

[x] See Gorgias 454e, 455e.

[xi] See Gorgias 458e, 459c.

[xii] See History of the Peloponnesian War I, 90; compare the claims in History of the Peloponnesian War II, 65. I am indebted for this point to the commentary in Plato, Gorgias, translated with notes by Terence Irwin, Oxford: Oxford University Press, 1979, p. 237.

[xiii] See Gorgias 456c-d.

[xiv] See Gorgias 459c.

[xv] See Gorgias 460c.

[xvi] See Sextus Empiricus, Adversus Mathematicos, VII, 65-87; W.K.C. Guthrie, op. cit., 193-194; Jonathan Barnes, op. cit., pp. 173-174.

[xvii] See Gorgias 465c-466a, 502a-c.

[xviii] See Rhetoric 1354a1-3.

[xix] See Rhetoric 1355a4-7, 1400b37. I am equally indebted to the previously cited account of M.F. Burnyeat and its incisive criticism by Carlo Ginzburg in “Aristotle and History, Once More”, in History, Rhetoric, and Proof, Brandeis University Press, 1999, pp. 38-53. My understanding of enthymeme agrees with the traditional definition of an abbreviated syllogism, repudiated by Burnyeat and reinstated by Ginzburg.

[xx] See Rhetoric 1402b8-1403a14; compare Carlo Ginzburg, op. cit., p. 40.

[xxi] See M.F. Burnyeat, op. cit., p. 93.

[xxii] See Rhetoric 1368a27-34.

[xxiii] See Charles Norris Cochrane, Thucydides and the Science of History, Oxford University Press 1929, and its review by Paul Shorey in Classical Philology, Vol. 25, No. 3 (July, 1930), pp. 290-292.

[xxiv] See Cicero, De Legibus I.5, where Herodotus, acknowledged as the father of history, “pater historiae” is said to purvey find fables scarcely less numerous than those, which appear in the works of the poets; cf. the English translation by Francis Barham. Also see the discussion of the Herodotean and the Thucydidean traditions by Arnaldo Momigliano in The Classical Foundations of Modern Historiography, Berkeley: University of California Press, 1990, pp. 29-53, especially pp. 36-39 and 42-44.

[xxv] See e.g. his inference from persisting local customs to hypothetical past usage spread everywhere, in History of the Peloponnesian War I.6, and other examples cited by Carlo Ginzburg in op. cit., pp. 44-45.

[xxvi] See History of the Peloponnesian War I, 1.

[xxvii] See History of the Peloponnesian War I, 22.

[xxviii] I follow Moses Finley’s comments in the introduction to Thucydides, History of the Peloponnesian War, translated by Rex Warner, NY: Penguin Classics, 1954, pp. 24-25.

[xxix] See the discussion by A. Andrewes, “The Mytilene Debate: Thucydides 3.36-49”, Phoenix, Vol. 16, No. 2 (Summer, 1962), pp. 64-85

[xxx] See History of the Peloponnesian War III, 36.

[xxxi] See History of the Peloponnesian War III, 37-40.

[xxxii] See History of the Peloponnesian War III, 44.

[xxxiii] See History of the Peloponnesian War III, 41-48.

[xxxiv] See History of the Peloponnesian War III, 42.

[xxxv] “Car si nous l’avions telle que je la conçois, nous pourrions raisonner en metaphysique et en morale à peu près comme en Geometrie et en Analyse, parce que les Caracteres fixeroient nos pensées trop vagues et trop volatiles en ces matieres, où l’imagination ne nous aide point, si ce ne seroit par le moyen de caracteres.” In Die philosophischen Schriften von Gottfried Wilhelm Leibniz, edited by C.I. Gerhardt, Volume VII, Berlin: Weidmann, 1890, pp. 21, 200. For the background see W. Kneale and M. Kneale, The Development of Logic, Oxford: Oxford University Press, 1962. pp. 241, 311, and 325-328; Bertrand Russell, A Critical Exposition of the Philosophy of Leibniz, Cambridge: Cambridge University Press, 1900, pp. 169-170; George MacDonald Ross, “Leibniz’s Debt to Hobbes”, Leibniz and the English-Speaking World, Liverpool, 3–6 September 2003; Herbert Breger, “God and Mathematics in Leibniz’s Thought”, in T. Koetsier, L. Bergmans, editors, Mathematics and the Divine: A Historical Study, Elsevier, 2004, pp 485-498, at pp. 487-488. Regrettably, I am unable to do justice in this paper to the erudite and profound account of Roger Berkowitz in The Gift of Science: Leibniz and the Modern Legal Tradition, Harvard University Press, 2005.

[xxxvi] See John Locke, An Essay Concerning Human Understanding IV.xv.1, edited by Peter H. Nidditch, Oxford: Oxford University Press, 1975, p.654; David Owen, “Locke on Judgment”, in Lex Newman, editor, The Cambridge Companion to Locke’s “Essay Concerning Human Understanding”, Cambridge University Press, 2007, pp. 406-435.

[xxxvii] See Nicomachean Ethics 1094b12-14.

[xxxviii] See Mark Bowden, “The Dark Art of Interrogation”, Atlantic Monthly, October 2003.

[xxxix] See A.W.B. Simpson, Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise, Chicago: University of Chicago Press, 1984. The text of the judgment in the criminal case Regina v. Dudley and Stephens ([1884] 14 QBD 273 DC), establishing the precedent for the defense of necessity against criminal charges. Also see the hypothetical case described by Lon L. Fuller in “The Case of the Speluncean Explorers”, Harvard Law Review, Vol. 62, No. 4, February 1949.


[xli] See Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts, 1821, Vorrede: “die Eule der Minerva beginnt erst mit der einbrechenden Dämmerung ihren Flug.” The cock, Alektôr, an apotropaic Averter of Evil, is a sun bird traditionally represented as sitting on Apollo’s arm, shoulder, or head. See Plutarch, De Pythiae oraculis 400C; Grace H. Macurdy, “The Derivation and Significance of the Greek Word for ‘Cock’”, Classical Philology, Vol. 13, No. 3. (Jul., 1918), pp. 310-311; Miroslav Marcovich, “Pythagoras as Cock”, The American Journal of Philology, Vol. 97, No. 4. (Winter, 1976), pp. 331-335.

nanny statists, sore losers?

Charles Simic asseverates, without adducing a shred of evidence or articulating a scintilla of argument, that the chief mission of NRA and other gun lobbies is “to drum up business for the 1,200 gun makers in this country”. Let’s see how his claim holds up.

In 2012, according to an analysis by business research firm Hoovers, the gun and ammunition industry in the U.S. generated an estimated $6 billion in revenue. In comparison, Exxon Mobil alone generated $482 billion, with WalMart coming in at $469 billion. Outside of the oil and gas and retail industries, we find Apple at $156 billion, closely followed by General Motors, General Electric, and Berkshire Hathaway at $150, $147, and $144 billion. In the general scheme of things, the aggregate revenue of the U.S. gun industry would place it around relative pipsqueaks on the order of Hershey and Kodak.

If the strength of the gun lobby is owed to the industrial base of its suppliers, why don’t we hear about the politics of chocolate bars or film stock unfairly dominating American lunch counters and movie theaters? Could it be that NRA, in deriving nearly half of its revenues from individual membership dues, functions as a legitimate conduit of public interest, no less so than the Supreme Court of the United States, in affirming the individual right to keep and bear small arms that are commonly used for self-defense and appropriate for service in the militia, including Simic’s bugaboos, “not only hunting rifles but also military-style murder weapons and even hollow-point rounds that are banned in warfare”? Is it possible that Simic bemoans this publicly disclosed and thoroughly litigated state of affairs for want of journalistic integrity that begins with accounting for the financial data and studying the legal rulings of our court of last resort?

As witness Dan Baum interpreting the politics of guns in terms of “the power of the individual in relation to the collective, and the extent to which each of us needs to live by the permission of the rest”, an American liberal need not be a nanny statist. Likewise Seventh Circuit Judge Richard A. Posner, self-identified as a “pragmatic classical liberal”, who invalidated under the Second Amendment an Illinois law, the last in the land to forbid most people, though not politicians, from carrying a loaded gun in public. Simic’s demagogical legerdemain is far more plausibly attributable to intellectual dishonesty than political convictions.

Crossposted to [info]larvatus and [info]guns.

unslanting the commentariat

If the NRA today seems fixated on the notion that the left is out to confiscate Americans’ legally acquired firearms, that’s because 15 years ago, advocates wanted to do exactly that.

Let’s try rephrasing this ideologically laden statement under alternative assumptions about the way whereby public appearances reveal the underlying political reality:

If the NRA today understands that the left is out to confiscate Americans’ legally acquired firearms in the long run, that’s because 15 years ago, advocates were candid about wanting to do exactly that.

It beggars belief to suppose that the immediate goals of advocacy exhaust the long term agenda of the advocates. Why should anyone take formerly avowed banners at their word insisting that henceforth they will be content with limited regulation?

legislative intransigence and the politics of compromise

Barack Obama was against gay marriage before he became all for it. Wayne La Pierre was in favor of legislation mandating background checks for private party gun sales before he became all against it. When the facts changed, they changed their minds. What do you do, ma’am?

Joining the NRA in defending a system in which it is perfectly legal for someone to buy a dozen assault rifles and then sell them with no background checks in a parking lot, is a cinch in view of the eternal recurrence of gun ban proposals complemented by the gun ownership records produced by the proposed background checks. Democrat dreams of gun confiscation are a gift that keeps on giving to the advocates of gun rights.

The main fact that has changed in the fourteen years since Wayne LaPierre spoke in favor of mandatory background checks for private firearm sales, is the recognition by the SCOTUS of the right to keep and bear arms as fundamental and Constitutionally protected. The prevailing understanding of the Second Amendment is that it protects an individual right to keep and bear those, and only those small arms that are commonly used for self-defense and appropriate for service in the militia. This is consistent with gun control, e.g. through licensing concealed carry of handguns or registering the ownership of machine guns. But outright bans on ownership and carry have been off the table since Heller and McDonald. Nonetheless, we are witnessing renewed, if foredoomed, attempts to ban certain kinds of guns, including the AR15 platform, which in the wake of the 1994 AWB became America’s most popular rifle, i.e. the epitome of an arm subject to protection under the Second Amendment. As a self-anointed Constitutional expert, our POTUS saw himself fit to rescind the enforcement of DOMA well in advance of a SCOTUS ruling on its constitutionality; whereas in the instant matter he sees himself fit to push for legislation that expressly conflicts with its existing rulings. Under the circumstances, making every firearms transfer subject to Federal supervision, would create a database apt to be exploited in further attempts to infringe the right to keep and bear arms.

Despite all that, as a resident of California long compelled to submit my gun transfers to scrutiny by Big Brother, I could see myself compromising on this matter — but only if I got something in return. Reviving the National Right-to-Carry Reciprocity Act of 2011, passed by the House of Representatives in November of 2011, only to be killed in the Senate, would be a good starting point. Time and again, poll after poll has shown that Americans want politicians in Washington to compromise. Where is their compromise on gun rights?

gun control after hitler

Omer Bartov, one of the world’s leading authorities on the subject of genocide, recounts its lessons to Salon:

Just imagine the Jews of Germany exercising the right to bear arms and fighting the SA, SS and the Wehrmacht. The [Russian] Red Army lost 7 million men fighting the Wehrmacht, despite its tanks and planes and artillery. The Jews with pistols and shotguns would have done better?

As a matter of fact, though nowise limited to pistols and shotguns, my Jewish father and his brother did a lot better inflicting disproportionate casualties upon the Wehrmacht on behalf of the Red Army. By contrast, owing to the Soviet policy of victim disarmament, they were unable to resist the emissaries of their triumphant State, dispatched to convey them to the GULag after the closing of international hostilities.

Is Professor Bartov making the point that in so far as my family and my kind are powerless to resist la raison d’État on our own, we might as well put our trust in our democratically elected princes, and learn to relax and enjoy their periodic infringements of our fundamental rights? Or is his reference to having been a combat soldier and officer in the Israeli Defense Forces, and knowing “what these assault rifles can do” meant to suggest to the contrary, that we Jews ought to arm ourselves with the deadliest small arms available, in consideration of two millennia of oppression and genocide visited upon our ancestors?

Arms, kept and borne individually or institutionally, aren’t a panacea. Thus France was heavily armed, but quickly succumbed to the Nazis, whereupon she used her arms to round up French Jews for extermination on their behalf. Would I and my likes be morally, physiologically, or economically better off armed or disarmed on the occasion, or in the anticipation, of the next Vel d’Hiv roundup?