Over the last several days I’ve been watching StephenB thrash RDFish in this post.
Several times SB has asked Fish this question:
Is a murderer a different kind of cause than accidental death or is it not?
Now obviously Fish is in a pickle, between the proverbial Scylla and Charybdis so to speak. If he says that a murderer is in the same category of causation as accidental death, he will look like an idiot, because everyone knows they are not. But if he says they are in different categories, then SB has him right where he wants him, because the next, obvious, question will be: what makes them different? And the answer to that question is also obvious; death by murderer is caused by the act of an intelligent agent, and accidental death is not. And inevitably that leads to this question: Are there objective indicia that allow us to discern which is which?
Instead of admitting the obvious, Fish asserts:
You have failed to provide an objective method for discovering which arrangements of matter are “for a purpose”. There is no such method, which is why you cannot describe it.
There you have it. Fish’s Axiom: “There is no objective method for discovering which arrangements of matter are for a purpose.”
Wait a minute. Wait a minute. Isn’t it a corollary to Fish’s Axiom that the entire edifice of the law is built upon a house of cards? And doesn’t Fish’s Axiom pull out the critical foundational card so that the entire structure of the law has come tumbling down in a twisted tangled heap?
Allow me to explain. Almost every aspect of criminal law and much of civil law turns on the issue of intent, i.e., purpose. The law treats accidents differently than intentional acts. Duh. But if Fish’s Axiom is true, then as a practical matter the distinction between purposeful (i.e., intentional) conduct and accidental conduct is meaningless.
Some years ago there was a case in which a spectator at a softball game (let’s call him “Bob”) became enraged at a call, marched out onto the field, and beat the umpire to a bloody pulp. Naturally, the umpire was upset about this and decided to sue Bob. But the umpire did not sue Bob for assault. He sued him for negligence instead. Why? Easy. Bob was not rich, and the umpire figured out pretty quickly that they only path to money was through Bob’s insurance company. The umpire had a problem though. Every insurance policy ever written has an exclusion for “intentional conduct.” In other words, insurance companies cover you when you cause an injury by accident; for obvious reasons they don’t cover you if you cause the injury on purpose.
In a “strange bedfellows” incident, the umpire and Bob both agreed to say the whole incident was an accident, that Bob’s fists unintentionally and accidentally repeatedly made contact with the umpire’s face. Remarkably, the jury went along, and a judgment against Bob was entered on that basis. The umpire took the judgment to Bob’s insurance company and said, “I’ve got a judgment against your insured for an accidental injury. Your policy covers accidental injuries. Pay up.” Now the insurance company decided it was not going to play along. It brought a new lawsuit claiming that its policy exclusion for intentional conduct applied and it had no obligation to pay. The court in that case agreed, holding that the conduct was obviously intentional and not accidental, even if both of the participants now said otherwise, and entered judgment for the insurance company.
What does all of this have to do with Fish’s Axiom? Well, obviously if there is no objective method for discovering which arrangements of matter are for a purpose, then the second court was wrong to say that objectively Bob acted purposefully. It gets worse. In order to convict someone of murder, the prosecution has to prove objectively that the accused acted with the purpose of killing the victim. In order to convict someone of robbery, the prosecution has to prove the accused acting with the purpose of depriving the victim of his property. In order to . . .
You get the picture. The law is saturated with “purpose talk.” In almost every criminal trial that has ever gone to a judge or a jury from the dawn of legal procedure to this very day, “purpose” has been a critical issue. But if Fish’s Axiom is right, if we can never objectively determine whether an agent acted for a purpose, the entire project has been one massive fraud. Who knew?