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* Using cases as repositories of evidence about the "unwritten law”;
* Determining the relevance of precedents by exclusionary principles of evidence and logic;
* Treating opposing legal briefs as adversarial hypotheses about the application of the "unwritten law" to a new set of facts.
As late as the eighteenth-century some juries still declared the law rather than the fact but already before the end of the seventeenth century Justice Sir Matthew Hale (Hale, 1667) explained modern common law adjudication procedure and acknowledged Bacon as the inventor of the process of discovering unwritten laws from the evidences of their applications. The method combined empiricism and inductivism in a new way that was to imprint its signature on many of the distinctive features of modern English society:
* Making manifest the law behind the unwritten common law;
* Applying to manners and social behavior the unwritten gentleman's code of honor of things "done" and "not done”; of what is and is not “cricket”. The playing fields of Eton observed the code of the master of Verulam.
* Observing the "conventions" of Britain's unwritten "working" constitution;
* The tradition of the scientific naturalist: meticulous empirical observations in search of the laws of nature.
The old organon, Aristotle’s logic, was a rhetoric engine for investigating and explaining alphanumeric literacy, post-mythic discourse. It involved an “archival revolution”(Wheeler, 1987-a) in the encoding, storage, retrieval and information processing functions and was made possible by the invention of the quill and scroll.(Wheeler, 1990) Bacon’s time saw a database explosion produced by optics, ships, mechanisms and print, and it had to be assimilated using a new investigative and explanatory logic engine; a novum organum. The modern mind wants naturally to jump from Aristotle to Descartes and Newton - to the Descartes who separated mind and matter and invented a way of describing a mechanical watch-works world; and to the Newton who invented a calculus of linear relationships in a closed causal system. But Bacon’s empiricism came in between. He invented a new phenomenology of law-finding: an investigative and explanatory logic engine, a novum organum, for law. As will be seen later, Newton used it to invent his own new mechanics of causal relations.
"Law" is used here to mean invariances associated with the relationships between things in a system or structure which, if those lawful relations are changed the system is either changed or dissolved. "Cause" is used to mean things associated in an invariant linear time sequence.
This distinction is useful not only because of the juridical foundations of Bacon's philosophy but also because it helps distinguish Baconian law-finding from Cartesian cause-finding. It also helps identify the origin of both modern phenomenology and of modern Anglo-American analytic philosophy.
Bacon’s main research database was always the book. He created a new archival technology made possible when arcane scroll and codex repositories of knowledge became widely accessible through printing. A collection of similar rulings could be inspected, not to make a better shoe horn for forcing a fit but for abstracting common underlying general principles. The element that then emerged was not a ruling but an analytically discovered law that “must” be the juridical foundation for a set of related case rulings: judging the rulings to find the rule they jointly express. The process is like what in artificial intelligence programming is called back-chaining and is the foundation for computer-mediated searches for roots and causes, as in medical diagnosis. It is also the empiricist process of that supreme Baconian, Sherlock Holmes.(Sebeok 1981) One begins with the presenting symptoms, perhaps a syndrome, and works from them back to a set of probable sources or causes. The “cause” or “law” is not a time-sequential cause in the sense of classical mechanics but is rather the explanation that remains after evidence and logic eliminate every other possibility. It is not static and final; it is dynamic and subject to correction on the basis of new evidence that may later appear.
Such a process preserves stare decisis as a principle but makes it dynamic and incorporates into it principles of change and growth. No individual ruling now or in the future could express concretely the unwritten law, any more than had individual rulings of the past. The unwritten common law of England remains forever ineffable, uncaptured in any given ruling, and capable of further growth and application as knowledge and conditions change. More important, the collection of all such deeper laws (rather than their applied rulings) amounts to a general system of fundamental law.(Wheeler, 1975) an unwritten "constitution," whose first tentative expression was in “The Case of the Post-Nati.(Wheeler, 1947; 1949; 1956; 1975) This potential for submitting government to the rule of law under an unwritten constitution later came to be called constitutionalism.(C.H. McIlwain, 1940; F. Wormuth, 1949) It was not finally realized until after the "Glorious Revolution" of 1688 but Bacon’s earlier case reports and law briefs exhibit the potential. This happens also to be the conception, or paradigm, of scientific law characteristic of postmodern science. Bacon explicitly made allowance for carrying the same kind of dynamism into natural science through his Aphorism, Apothegm and Maxim styles of stating a scientific law. Bacon's phenomenology of law imported into the English unwritten common law an artificial and abstract logos-like domain that was “real” in the way the Roman Law described a real, though impalpable, domain. He processed information in this phenomenal domain using his own new "grammar", a "philosophical grammar" he called it. He contrasted this with both "literary grammar" and rhetoric, which deal with language rather than with what he called philosophy. By philosophy Bacon meant "science”. It was long called natural philosophy and today we would probably call it semiotics or phenomenology. In Book Six of the De Augments Bacon described it as:
"...a kind of grammar which should diligently inquire, not the analogy of words with one another, but the analogy between words and things, or reason; not going so far however as that interpretation which belongs to Logic”.(Works, De Augmentis, VOL IX, pp 111-112)
Bacon outlined a new comparative semiotics designed to lead to a general grammar like Chomsky’s “Transformational grammar,” and to a theory of signs like that of Peirce.. He went on to devise a binary alphabetic code of "A"s and "B"s that is remarkably similar to today's binary digital code on the one hand and to our character based genetic code on the other.
FROM VERULAMIUM TO EMPIRICISM:
Bacon’s law judging and law finding researches led to the invention of the new phenomenological element I’ve named Verulamium. He refined it for application to fields outside the common law and expressed it through a new meaning given to the Maxim. Bacon was born into a rich environment of equity law maxims. His father collected and composed them and displayed a special selection of maxims on plaques above the wall panels of the great hall in the mansion where Francis grew up. They made a lasting impression. After becoming Lord Chancellor (his father never made it from Lord Keeper of the Seal to Lord Chancellor), Francis used the maxim approach to give equity law a foundation that was to last two centuries, until equity was absorbed into the common law. His interest in the maxim genre led to a life-long search for other ways of condensing large amounts of related information into succinct summaries. Nine collections of his law like expressions have been identified, falling into seven categories: Sophisma, Parabola, Aphorismus, Optataiva, Canones, Antithetorum and Maximes.(J.C. Hogan & M.D. Schwartz, 1983). Although the Rules and Maximes of the Common Law and the Elements of the Common Law (J.C. Hogan & M.D. Schwartz, 1983) were not published until 1630, after his death. Bacon had worked at those projects during his entire adulthood. Only 25 of his 300 maxims still survive. The Maxim became the model for the generalized idea of unwritten law - juristic and natural - that was later turned into the scientific Apothegm. He was convinced that if he could perfect the process of making maxims out of law cases he could adapt that process from the finding of a rule of law to the finding of a rule of science. He could then define the structure, or protocol for conducting research in quest of a rule of science. Bacon's protocol of law extraction to uncover rules or maxims out of the seeming chaos of the unwritten law was a little like a System Theoretic protocol: He said the structure of a rule of law in science should:
* Have clear and perspicuous exposition
* Make precise distinctions
* Lead back (back-chain) readily into its foundation cases (examples)
* Display the (tri-modal) logic chain between the foundations and the maxim or rule
* Show relations to other maxims and rules(Hogan & Schwartz, op cit.)
The first systematic explanation of this logic engine was the Aphorisms. They were designed to cover, as he said, all provinces of knowledge, social and natural. Aphorism 85 says of a scientific rule that it should serve as a "magnetic needle (nautica polos) that points to the law but does not settle it. 'Non ex regula jus sumatur, sed ex jure quod est regula fiat' - The law should not be taken from maxims, but maxims from the law”. Again, the law he referred to is unwritten, in both the common law and in nature. This means the law is phenomenal, made out of Verulamium; maxims are its operational hypotheses. We are at the origin of modern phenomenological analysis.
At this point the master of Konigsberg must be introduced. In the Preface to the second edition of Critique of Pure Reason(Kant, 1924). Kant acknowledged his indebtedness to Bacon and followed a line of thought similar to that in Novum Organum. He said the human mind thinks naturally in terms of dyadic, linear, time sequential relationships: post hoc ergo propter hoc. He described a triadic logic to account for how this arises in the Newtonian universe, and helps explain the isomorphism between mind and classical mechanics; Kant identified the latter with nature. Then, by axiom and argument, Kant created three new philosophic components that were very similar to Bacon’s own. This permitted a new understanding of both the outer world and of the inner world, through the use of a special new ratio able to mediate between them transitively. The ratio could do this because its own structure was homologous with the structures of both nature and mind. This was the famous triad of phenomenon, noumenon and schematismus. The model seemed at the time to have the added virtue of dispelling the accumulated paradoxes of British empiricism and French rationalism, Hume and Descartes, by incorporating both into a larger domain of lawfulness.
Admittedly nature’s lawfulness and its mechanics are closely connected in much philosophic writing. However, a distinction by Charles Sanders Peirce is useful. He claimed that what he called dynamical systems are dyadic. By contrast, his own “pragmaticism” was triadic. Triadic systems, he said, do not self-destruct into pairs. It is the difference between linear and structural (systemic) relationships. Peirce was a neoKantian though he also like to go by several other philosophic aliases. He developed a model of tri-modal transitivity, similar to Kant’s, and promulgated it as the basic law of semiosis:
...by "semiosis" I mean,... an action, or influence, which is, or involves, a cooperation of three subjects, such as sign, its object, and its interpretant, this tri-relative influence not being in any way resolvable into actions between pairs.(Peirce, 1966)
Peirce was talking about what today is called cognitive science. His protocol was like the one Plato developed using Pythagorean harmonic ratios to mediate between the "master circles" of the universe and the harmonic perceptions of the human mind. This permitted Peirce to create a tri-modal transitivity such that the findings of any one domain could be confirmed in the other two(Wheeler, 1982; McClain, 1982).
Francis Bacon's philosophy was empiricist. It dealt with actual things but those things were made out of law-stuff. The consequence, almost automatically, was a new kind of phenomenological empiricism. It was more primitive than the later phenomenologies of Kant and Peirce but was of their same general type. A good way to illustrate this is to begin with Bacon’s assumption that the English unwritten common law possesses “thingness”. This is not a concrete thing like a chair but is what we now, following Immanuel Kant, call a phenomenological thing. All the elements of culture from folkways to styles possess thingness. Things have discoverable empirical properties. They hurt the people who violate them; ‘sticks and stones may break my bones but only names can hurt me’; and law is the firmest and harshest of them all. Bacon identified the thingness of the unwritten law as having the binary properties of processus and schematismus: process and form. If those properties could be made accessible to the human mind, a ratio - a logic machine could be created capable of mediating between them. The result would be a new scientific empiricism; an Instauratio Magnum. These conclusions follow:
1. Bacon's scientific empiricism had a semiotic foundation; 2. It was based on a tri-relative model analogous to those of Kant and Peirce, especially Peirce;
3. The three components were:
I. The outside world, dealt with through a binary ontology of law comprised of processus and schematismus (Kant's binary assumption about cognition was different);
ii. The inside world was dealt with through a theory of Judgment based on the idola and providing an analogous model of perception and understanding; iii. Mediation between them was by a ratio (the new logic of inquiry) whose "adminicle" inductivism provided a tri-relative transitivity between the inside and outside worlds.
The juridical foundations for items [3.I] and [3.iii] (Wheeler, 1983) have been explored previously and will not now be discussed.
(3.ii), the theory of Judgment deals with the way Bacon created a view of the inside world that was compatible with:
* The outside world,
* His ontology of Form,
* And also with his instrument of analysis, the new “adminicle” logic of inquiry.
Note the juridical flavor of the term “judgment”. Baconian science never loses its quality of law-finding and promulgating. This is made explicit in New Atlantis by the way Salomon’s House, the R&D institution, runs Bensalem and administers science.(Wheeler, 1991)
The semiotic aspect of Bacon's theory of Judgment is emphasized in several places in his scientific writings. Most explicit, perhaps, is his claim that the ultimate aim of the New Organon, the new logic engine of inquiry, was to uncover nature's hidden "abecedarium”; to break the code in which nature’s constitution was written so that the words, clauses and sentences of her encrypted laws could be deciphered.(Works, Vol III, 306-311). However, the theory of Judgment also puts the reciprocal question about how thoughts are encoded in the mind.
Bacon asked over and over why the ancients had failed to produce scientific empiricism. They had produced the two revolutions in thought that were prerequisites to his own third intellectual revolution: Greek philosophy and Roman Law. If he could go beyond them to produce empirical science, why had not the human mind discovered it ages before?
The answer Bacon gave derived from his conception of the archives of unwritten laws and the nature of their archival encodings; their own native languages and words. Words, he said, stand as the footprints of thoughts. Words and languages must facilitate the communication between all people, including the most doltish as well as the most brilliant, the Gothic as well as the Baroque. Hence they are intrinsically demotic; popular. He concluded that this intrinsic vernacular defect predetermines that word-based analysis must always remain constricted to a demotic level. Words, wrote Bacon, are:
...commonly framed and applied according to the capacity of the vulgar [and] follow those lines of division most obvious to the vulgar understanding. And whenever an understanding of greater acuteness or a more diligent observation would alter those lines to suit the true divisions of nature, words stand in the way and resist the change.(Works, Novum Organon, Aphorism LIX, vol VII, p. 78)
This was not merely, or even chiefly, a matter of vocabulary. “Divisions" was one of the main problems; not only literally for texts possessing few internal markers but also substantively. What was the unwritten law’s true and proper taxonomy? And beyond its apparent divisions and partitions and classifications, what was its underlying cladistics - its homogenic phyla and orders? As the New Organon explained, this discovery was necessary because no demotic (vulgate) language could express the processus and schematismus of any natural laws. That was why the ancients, for all their genius, had never been able to produce science. It was the main reason Bacon was more complimentary to Plato than to Aristotle. He thought Democritus had been on the right track and believed that there might have been some chance for the ancient emergence of empirical science until Aristotle forestalled it completely by his word-&-language, mind-&-nature based logic. That original flaw determined that all Aristotelian and Scholastic philosophy would forever remain imprisoned within the confines of demotic discourse, in Bacon's special analytic meaning of that term. He acknowledged that mathematical reasoning was somewhat better than reasoning by formal logic but even it possessed the germ of the fatal demotic defect because its basic definitions were framed in with words. Accordingly, they led to the wrong "divisions”. All such demotic systems made the world "the bond-slave of human thought, and human thought the bond-slave of words"(op. cit. Aphorism LXIX) - a maxim Newton was to take seriously. Bacon set his New Organon the problem of creating a non-demotic logic of law-finding.
The analytic solution was to find a way to create reciprocal alignments, an “assembly language” so to speak, between what we might call the “machine language” of nature and the encoding language innate to human thought. That is the way Von Neumann would have expressed it if he’d been Bacon and it is exactly what Bacon meant. The most familiar parallel is to Noam Chomsky’s innate, as distinguished from genetic, Transformational Grammar. Bacon’s scenario called for conducting a set of recursive tests, alpha, beta and so on; his term was “trials;” trials of particulars. Nature would be arraigned in a laboratory that he called an “inventory” (pronounced inVENtory), meaning an invention making workplace, and induced to testify in her own natural language, uncorrupted by the inadequacies of human demotic language. It was a phenomenological inquisition applying ‘ways of making nature talk.’ This would permit framing preliminary axioms, what we would call provisional hypotheses, to account for nature’s known behaviors. These in turn would be used for the design and conduct of new trials, using improved inquisition, investigation, methods, and successive approximations. The process would generate new and better axioms; and so on recursively to ever better axioms and inquisitions, and progressively better decodings of “divisions,” at progressively higher levels of abstraction. This applies the processus and schematismus approach to avoid the demotic flaw. Newton’s “fluxions” will later adapt this recursion to mathematics. There is a rudimentary flow-chart description of the process in New Atlantis.
It is fruitless, Bacon insisted, to seek causes and concrete results overtly. The object of inquiry must instead be "abstract natures”. These will constitute the "alphabet or simple letters, whereof the variety of things consisteth”.(Works VI, p. 63) He is thinking neither as a geometer nor as a simple inductivist. Rather the processes and images he has in mind are juridical; trials: inquests, discovery of facts, and taking depositions. The New Organon was an instrument of empirical investigation just as the new telescopes were instruments of empirical observation. Although Bacon occasionally speaks of “cause,” his tendency is rather to seek the “laws” of nature. His theory of Form, when it leaves ontology and turns into science, becomes law, not cause; but law in the English sense. The "instances" that provide the constitutive units of evidence in the New Organon are like the case precedents of the common law, after he had developed the new phenomenological empiricism for using them effectively. The instances stand out as what he called "fingerposts”, direction pointers, markers that like a compass needle, help the scientist keep on the right path to the unwritten laws of nature. On other occasions, when direction-finding is described as the "freeing of a direction," Bacon seems to have been thinking like an explorer mapping uncharted domains. He appears then to imagine nature as an undiscovered continent to be searched out by following signs and clues; analogues of weather portents.(Ibid, p. 59)
Just as the processes of nature were misleading if one tried to deal with their overt manifestations, so also with the processes of the human mind if one worked only with its demotic concepts. The mind was, by its truest and deepest nature, the "form of forms"; Bacon’s Form, not Plato’s. Hence if properly operated it was potentially capable of decoding nature's hidden abecedarium even though its ordinary and superficial operations made it ill suited for scientific analysis. Its perceptual faculty was like a lens but it was far from being a "clear and equal glass" and instead produced the distorting effects of an "enchanted glass” (n.b., Isaac Newton). Special correctives were needed to compensate for the mind's built-in sources of error and distortion. That was where the Idols of the Mind came in. They were instruments, prisms, for detecting, diagnosing and correcting the inner processes of the mind. Just as prisms permitted measuring optical distortions, which could be used to make corrective spectacles, one could use the idola to fashion a corrective logical engine, an organon, for performing accurate analysis.
The four Idols of the Mind are often understood as false idols, as in the biblical prohibition against setting up graven images and following false gods. However, this meaning is valid only in a round about sense. Idolum comes from the Greek eidolon. Plato used it to mean appearances: false perceptions. He contrasted it with idein, to see truly. Originally Idein had possessed the sense of the ritual thing seen, as in a revelation that occurs after the proper ritual preparation, and by means of which an inner truth can be disclosed to and perceived by the initiates. Both meanings, the true and the counter-intuitive, are present in Platonic Idea, or Form. They are also part of the meaning of Bacon's idola: the erroneous structures and divisions that must be eliminated from the world inside before one can understand the Forms (Baconian) of the world outside. The idola showed how sensations mislead perceptions, distort the understanding and lead to mistaken judgments. They have been confused often with Roger Bacon's four "offendicula”, (stumbling blocks). These were sociological, rather than semiotic and analytic, "hindrances" to truth such as authority, custom, popular opinion and ignorance. It seems likely that with his own idola, as he did in many aspects of his philosophy, Bacon started from an earlier conception and transformed it into a new principle. He did that with Plato, standing him on his head, as the later idiom would have put it.
Bacon's distinction between sensation and perception is the same as Leibnitz's distinction between perception and apperception. The idola showed how sensations mislead perceptions, distort the understanding and lead to mistaken judgments. This analysis of judgment was directly involved in Bacon's design for the stages of experiment and exclusion in the New Organon. In thinking out this tri-modal relationship he seems to have had in mind the way Plato worked out the dialectical component of his own tri-modal system in Gorgias.
Baconian probability is not Cartesian certainty. It is systemic probability rather than linear closed causal determinism. L. Jonathan Cohen of Oxford (L.J. Cohen, 1977 et seq.) is a leading theorist of probability; a Baconian type of probability. He calls Bacon's logic of inquiry an “inductive support” system and has patterned his own influential theory of scientific probability after it. Cohen’s is a non-Pascalian, meaning a non-statistical, type of probability. The probability involved in B.F. Skinner's operant conditioning is similar. Operant schedules of positive reinforcement also rest on a non-Pascalian theory of probability.(Wheeler, 1973)
Bacon’s preferred term was “Adminicle”. Why? His first reference in the New Organon to the kind of evidence that confers probability employs the term fide-jussio. It is a legal term, of course, and denotes oral evidence in support of a legal claim, as with statements made in support of a claim to title in a suit at property law. Hence, "inductive support”, as Cohen and succeeding inductivists, Von Wright in particular,(Von Wright, 1960) termed Bacon’s theory of probability. Further on, Bacon prefers the term adminicle: adminicle inductivism. Adminicle had two prior meanings: in law, especially Scots law; recall Bacon’s membership on the Commission on the Union of England and Scotland. It meant a documentary support for a claim to title. Hence it was an empirical evidentiary confirmation. Bacon preferred adminicle to fide-jussion because when applying an essentially juridical inductivism to scientific applications, it would not do to rely on oaths, opinions and the like; shades of Gothic magic, which he castigated as evidence. Hence he chose a term from the law that had a more "material" import, as in “material evidence”. The second meaning of adminicle was also important. Historically, it referred to the architectural support added at the top of a structure to hold it up more securely, like a “flying buttress”. This “at the top” feature worked well with Bacon's hierarchical notion that confidence in the probability of a scientific conclusion strengthens as it rises up the successive stages of the "prerogative instances”. The prerogative instance in science is analogous to the "leading case" in law. Both "fingerposted”, Bacon’s term, the hidden law but did not state it concretely. In law it meant the support put in evidence to buttress the structure of an argument, leading to an irrefutable “conviction”. The New Organon contrasts adminicular induction with ordinary “empiric” induction, of which Bacon was unstintingly critical. Adminicle induction was a process of collecting circumstantial evidence that led cumulatively to the high probability of the accuracy of the result of the law-finding process. Adminicular inductions lead through a series of exclusions of “particular instances” to a latent "schematismus" or Form, the ultimate properties of which constitute what he means by scientific law. The process was derived from the method of exclusion in the law-finding process that used English case rulings to derive what “must” with high probability, be the unwritten common law’s application to a set of new facts.
Bacon described four logical tools, “arts”, to use in following nature’s leads: “Invention, Judgment, Memory & Transmission
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