Category Archives: Skeptical Philosophy

When the opinion is partly true and partly false.


John Stuart Mill in his classic book, On Liberty, considered free speech from one more perspective: namely beliefs that are partly true and partly false. Here too, he said, is another situation in which diversity of opinion is advantageous. In fact this is almost always the situation for invariably any opinion is not absolutely true. First, he considered the case of an opinion that might be false. The second was the case where the opinion is actually true, but a conflict with the opposite error is needed in order to clarify the opinion or preserve or create a deep feeling about that true opinion. In this case the contrary opinion can help immeasurably. Thirdly, Mill considers the case where neither opinion contains the whole truth and nothing but the truth. As Mill said,


“But there is a commoner case than either of these; when the conflicting doctrines, instead of being one true and the other false, share the truth between them; and the non-conforming opinion is needed to supply the remainder of the truth, of which the received doctrine embodies only a part  Popular opinions, on the subject not palpable to sense, are often true, but seldom or never the whole truth. They are a part of the truth; sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjoined from the truths by which they ought to be accompanied and limited.   Heretical opinions, on the other hand, are generally some of these suppressed and neglected truths, bursting the bonds which kept them down, and either seeking reconciliation with the truth contained in the common opinion, or fronting it as enemies, and setting themselves up, with similar exclusiveness, as the whole truth. The latter case is hitherto the most frequent, as in the human mind one-sidedness has always been the rule, and many-sidedness the exception. Hence, even in revolutions of opinion, one part of the truth usually sets while another rises.”


We ought never to think in black and white. We should always think in colour or include many shades of gray. Even revolutions usually just add one partial and incomplete truth for another. Hopefully the new truth will be better adapted to the needs of the time than the opinion or doctrine that is replaced. This is the profound point that Mill made which is particularly relevant to the age of extremes in which we live.

It was the glory of English empiricism and liberalism that grew out of the great period after the Religious Wars of the 17th century that produced thinkers willing to acknowledge that truth was not always entirely confined to one side of a discussion. Nowadays, this attitude is sadly rare. Nowadays, both sides often think they have the entire truth and the other side is of the devil. We must recognize that pure truth and pure falsehood rarely find homes on opposite sides of a dispute. That’s why holy truth and pure evil can rarely be found either. We should never expect to find pure truth or pure falsehood. Life is always more complicated than that. Mill was a member of that great British tradition of empiricism and liberalism.

As John Stuart Mill said,

“Such being the partial character of prevailing opinions, even when resting on a true foundation, every opinion which embodies somewhat of the portion of the truth which the common opinion omits, ought to be considered precious, with whatever amount of error and confusion that truth may be blended. No sober judge of human affairs will feel bound to be indignant because those who force on our notice truths which we should otherwise have overlooked, overlook some of those which we see. Rather, we will think that so long as popular truth is one-sided, it is more desirable than otherwise that unpopular truth should have one-sided assertors too; such being usually the most energetic, and most likely to compel reluctant attention to the fragment of wisdom which they proclaim as if it were the whole.”


The thinkers of the Enlightenment were surprised that they did not have the entire truth in their minds. They were shocked because it did appear to them that all proponents of science and philosophy would ultimately agree with them. They thought they had the truth, the whole truth and nothing but the truth, but they were rudely awakened from their slumber by one lonely thinker. That thinker was Rousseau. He gave Mills an example of a thinker who opposed the gathering consensus and cut it down at the knees. Mills described this momentous event this way,

“Thus, in the eighteenth century, when nearly all the instructed, and all those of the uninstructed who were led by them, were lost in admiration of what is called civilization, and of the marvels of modern science, literature, and philosophy, and while greatly overrating the amount of unlikeness between the men of modern and those of ancient times, indulged in the belief that the whole of the difference was in their own favour; with what salutary shock did the paradoxes of Rousseau explode like bombshells in the midst, dislocating the compact mass of one-sided opinion, and forcing its elements to recombine in a better form and with additional ingredients.  Not that the current opinions were on the whole farther from the truth than Rousseau’s were; on the contrary, they were nearer to it; they contained more of the positive truth, and very less of error.  Nevertheless there lay in Rousseau’s doctrine, and has floated down the stream of opinion along with it, a considerable amount of exactly those truths which popular opinion wanted; and these are the deposit which was left behind when the flood subsided. The superior worth of simplicity of life, the enervating and demoralizing effect of the trammels and hypocrisies of artificial society, minds since Rousseau wrote; and they will in time produce their due effect, though at present needing to be asserted as much as ever, and to be asserted by deeds, for words, on this subject have nearly exhausted their power.”


This was an outstanding example of what Mill was talking about. One side rarely has the whole truth. Mill, like me, had a lot of sympathy for the thinkers of the Enlightenment who brought reason and critical thought to the problems of the times. This was desperately needed. Mill accepts almost everything the Enlightenment thinkers stood for. So do I. But that does not mean they had the whole truth to themselves and their opponents had nothing good on their side. Rousseau was the outstanding example of exactly thought. He added truth to the other side and hence made both sides richer.

In fact, this phenomenon is extremely common. You can see it clearly in contemporary politics where each side thinks it has the whole truth, when both sides would benefit from a dose of truth from the other side, but is very reluctant to accept such a heretical possibility. Instead of that each sides tries to shut the other down.  Each should be listening to the free speech of the other. Once again, I come down on the side of heresy.



The Adversarial System


John Stuart Mill in his classic book On Liberty takes pains to point out that he is not saying that there must always be dissenting opinions. He does not say that a truth unanimously adopted does not at that moment stop to be a truth. Mill admits that when a doctrine does achieve near universal acceptance, that makes it more difficult. That is a serious drawback, because the necessity of explaining it to opponents or defending it against their attacks is most beneficial. But the absence of that does not end the matter. He says then teachers or others who are trying to persuade must find a substitute. They must find “some contrivance for making the difficulties of the question present to the learner’s consciousness, as if they were pressed upon him by a dissentient champion, eager for conversion.”


This is precisely the method adopted by the legal system. We call it the adversarial system. Both sides of a dispute are represented by competent advocates who make sure that the judge or trier of fact or law is fully apprised of all arguments in favor of a proposition or against it. That is why judges never want to proceed unless both parties to a dispute are represented by capable advocates. If they do not ensure this, the judge might make a mistake. Of course, even under the adversarial system, judges can make mistakes, but the chances are much less when that system is respected. It is a system that has stood the test of time.


Mill uses another example of a contrivance to substitute for full argument by both parties. This is the use of the Socratic method so loved by my insurance law professor. The system was based on a proper understanding of the classics of Greek philosophy brought forth by Plato. I remember reading some of those dialogues in my first year of university. Plato had Socrates often start a discussion by considering a commonly held opinion and then chipping away at it. Socrates referred to himself as an annoying “gadfly.” Annoying yes; but essential to the task of seeking the truth. Mill put it this way,


“The Socratic dialectics, so magnificently exemplified in the dialogues of Plato, were a contrivance of this description. They were essentially a negative discussion of the great questions of philosophy and life, directed with consummate skill to the purpose of convincing any one who had merely adopted the commonplace of received opinion that he did not understand the subject—that he as yet attached no definite meaning to the doctrines he professed; in order that, becoming aware of his ignorance, he might be put in the way to obtain a stable belief, resting on a clear apprehension both of the meaning of doctrines and of their evidence.”


Mill also mentioned how a similar approach was used by the famous “school disputations of the Middle Ages.” This technique was designed to make sure that a young student of theology understood fully his own position and in consequence the position of his opponent so that he could successfully argue for one and confute the other. Of course, as Mill realised, the Schoolmen had one fatal flaw that Mill would never countenance by his methods, the Schoolmen accepted authority rather than reason. That made them infinitely inferior to the Socratic dialogues.


Law courts in the common law system suffer from the same defect. In matters of law Common Law courts accede to the authority of precedent that they are not free to challenge. At least theoretically that is the case. In practice sharp judges can often reach the conclusion they want to reach. While I love the adversarial system of Common law courts, I too am opposed to dogged obeisance to authority and think this is one of the reasons that courts make so many serious mistakes. If an aeronautical engineers used this method no one would want to fly.


For all of these reasons Mill emphasizes that it would be eminently foolish to disregard the opportunity to hear contrary opinions when they are offered. It is so difficult to create artificial contrivances to ensure that contrary views are heard, that decision makers should never forgo genuine contrary views. They should be embraced, never constrained. Mill concludes as follows, “If there are any persons who contest a received opinion, or who will do so if the law or opinion will let them, let us thank them for it, open our minds to listen to them, and rejoice that there is someone to do for us what we otherwise ought, if we have any regard for either the certainty or the vitality of our convictions to do with much greater labour ourselves.


Free speech is always beneficial to the holder of opinions, whether true or false, provided the commentary is genuine and not frivolous or vexatious or totally absurd. As Mill said, such opinions should be “embraced, not constrained.’’ the contrary opinion and then deal with it.

That is why we need free speech.

Debate adds life


Coke used to claim that ‘Coke adds Life.”  I would suggest, based on my reading of John Stuart Mill htat debate adds life. Mill makes another important point in his classic book On Liberty, to illustrate the truth of this position. He points out

“it is illustrated in the experience of almost all ethical doctrines and religious creeds. They are all full of meaning and vitality to those who originate them, and to the direct disciples of the originators. Their meaning continues to be felt in undiminished strength, and is perhaps brought out into even fuller consciousness, so long as the struggle lasts to give the doctrine or creed an ascendancy over other creeds.

After that they die.

I will give another example that obviously does not come from Mill. It has often been remarked with interest that the Christian religion is much more vibrant in the United States than all or most other western countries. Why is that?  Some have felt that the reason for this remarkable achievement is the counter intuitive fact that in the United States religion has been kept separate from the state and the state has not been allowed to establish a religion. As a result, the US has robust religious freedom. As a result of this freedom of religion, each sect has to be constantly aware that there are competitive belief systems out there. No creed can take for granted that authority will support it. It must convince adherents to stick with it and must convince others to join if it wants to grow adherents. No sect can rely on official support. That is exactly what religious groups needs—convincing.  Anything less will be a dead creed. As a result each religious group must remain vibrant or it will lose out to competitive religious groups.

It is interesting that religious groups often forget this fact when they lobby governments to support their religious positions. For example, many Christian groups are keenly disappointed when they are not allowed to have public schools adopt and encourage their particular viewpoints. In the United States, reading the Bible in school has been prohibited. The amazing thing is that the United States without an established church has the most vibrant churches.

Establishing a church or a church doctrine has the opposite effect of making it less real and less meaningful, because no one is required to consider alternatives or debate its merits.

In Europe, for example, where churches have become identified with the state, the religions have become less vibrant. The absence of free discussion and debate leads to religious views become encrusted over and ultimately dead. Religious groups should be the ones to resist their own establishment as official religions.

That is why received opinions tend to be dead opinions. We all know that intuitively. We remember best what we have actively worked hard to learn. If someone tells us something it tends to stick.  I remember when I was a law student. I wanted professors to spoon feed me. The last thing I wanted was for the Professor to ask me a question and defend it. That was hard and scary. Being spoon fed ideas and principles was much easier.

Law school was taught on the basis of the case system. In other words we considered actual law cases where judges had made decisions and then we tried to extract principles from those cases that we applied to new situations.


I had one Professor in First year Tort law who was a brilliant and engaging lecturer. I loved his class. He summarized each case we had to know to such an extent that we did not even have to read any cases. In fact, he gave us the principle of each case and I dutifully wrote them down. He even told us we did not have to read a single case!  That made it very easy. Then at the end of the school year, to prepare for the exam,  I wrote crib notes reducing each case to one principle. I memorized about a 1,000 case names with a legal principles reduced to one or at most 2 lines. I was amazed at how well I could memorize. In fact I got an A in that class and was extremely pleased with myself as a result. I should not have been so pleased. I had not really learned much.

In my second year of Law School I took a course in insurance law. We had no choice. It was a compulsory course. I would not have selected the course because the Professor had a reputation for using the Socratic method. He asked us questions about actual cases that he assigned for us to read. In fact if we did not read a case he threw us out of the class because we were then not in a position to discuss it, for we knew nothing about it. That was humiliating and we did not want that to happen. So we dutifully read each assigned case.

Then in class the Professor of Insurance law never or rarely lectured us. Instead he asked us questions about the cases. I was constantly in fear for this approach, because I liked to sit with my head down writing notes, not wanting to be asked questions. After all having to answer questions would make me think. I did not want to think. I wanted to be told. This professor did not allow that. We had to read, we had to discuss whether we liked it or not. We had to think!

I was frequently surprised at how the Professor managed to find things in cases, which I had diligently read but failed to notice. He was brilliant. He found nuances to the legal principles that I could never find. He was a fantastic professor as I eventually realized after my fears subsided and I got used to what I had to do.

Eventually I realized I was enjoying the course and learning a lot. I loved the course. The Professor became my favorite Professor. Not only that but I was amazed at how much I learned in that class. I do not remember how well I did in that course. It did not matter for I had learned so much.

I was even more amazed, many years later how much knowledge I had retained from that class, even though I never practiced in the area of insurance law. The knowledge that was hard earned stuck with me for decades. The principles of tort law, which I had learned so well by rote memorization soon disappeared into the ether. I soon forgot them all. I did not really learn them because I had not engaged in the subject. Sitting back and learning by rote is a poor way to learn, even when the professor is very good and engaging. The principles I had memorized were not really meaningful. They were not alive inside me as the principles of insurance law were. As soon as the exam was over I started to forget what I had learned by memorization.

I think it is the same with principles of religion or ethics. The hard won principles which we must defend mean the most. The easy answers are dead and soon forgotten.

Many years later I became a part time teacher of law at the same University. I realized that I did not want to lecture students. I realized they would not really be engaged if I did that. So I became the type of Professor I had hated in Law School. I used as best I could the Socratic method that my Insurance law professor had used. I wanted my students to become engaged and learn something that would stick in their minds. I wanted them to debate and consider alternatives. I did not want to them to memorize even my ideas and my theories. I hope I did that. I drilled them with questions and made them defend their positions.


Indoctrination is not the best way to teach and is not the best way to learn. Indoctrination leads to the death of doctrine, as odd as that sounds. I know many parents who think they must do that, and provided it is done from a very young age, can lead to doctrines becoming so unconsciously accepted that they are never challenged and so long as person does not think about them, they might be held on to. But that is not a good way to bring such doctrines to life. That is a good way to create beliefs that are paper thin and blow away in the first gentle breeze of challenge or discussion.


Eventually I realized I was enjoying the course and learning a lot. I loved the course. The Professor became my favourite Professor. Not only that but I was amazed at how much I learned in that class. I do not remember how well I did in that course. It did not matter for I had learned so much.


I was even more amazed, many years later how much knowledge I had retained from that class, even though I never practiced in the area of insurance law. The knowledge that was hard earned stuck with me for decades. The principles of tort law, which I had learned so well by rote memorization soon disappeared into the ether. I soon forgot them all. I did not really learn them because I had not engaged in the subject. Sitting back and learning by rote is a poor way to learn, even when the professor is very good and engaging. The principles I had memorized were not really meaningful. They were not alive inside me as the principles of insurance law were. As soon as the exam was over I started to forget what I had learned by memorization.


I think it is the same with principles of religion or ethics. The hard won principles which we must defend mean the most. The easy answers are dead and soon forgotten.


Many years later I became a part time teacher of law at the same University. I realized that I did not want to lecture students. I realized they would not really be engaged if I did that. So I became the type of Professor I had hated in Law School. I used as best I could the Socratic method that my Insurance law professor had used. I wanted my students to become engaged and learn something that would stick in their minds. I wanted them to debate and consider alternatives. I did not want to them to memorize even my ideas and my theories. I hope I did that. I drilled them with questions and made them defend their positions.


Indoctrination is not the best way to teach and is not the best way to learn. Indoctrination leads to the death of doctrine, as odd as that sounds. I know many parents who think they must do that, and provided it is done from a very young age, can lead to doctrines becoming so unconsciously accepted that they are never challenged and so long as person does not think about them, they might be held on to. But that is not a good way to bring such doctrines to life. That is a good way to create beliefs that are paper thin and blow away in the first gentle breeze of challenge or discussion.


The opinion is true: Freedom not Indoctrination


All I have considered so far, is John Stuart Mill’s consideration of the possibility that the statement might be true. How do his comments apply to statements that are true? For example, if you are a Christian and believe in the truth of the gospel can you benefit from heresy? If you are a liberal who believes that the election of Joseph Biden as president in 2020 was not stolen by fraud should you nonetheless accept and consider heretical opinions that the election was fraudulent?


Mill  argued that people should be free to challenge true opinions on the grounds that this would maximize the amount of benefit or happiness for society. You might have thought that this would be a difficult claim to establish.


Here Mill makes a fascinating point.  Anyone should be free to challenge an opinion even if is true.  This is an extremely important point and I never seriously considered it until I read Mill.


Mill asked an important question, how will an opinion be held when its truth is not freely and openly discussed. One would think that would not matter. Right? After all, if we believe it to be true because it is never challenged we will believe what is true.  But Mill asks, how will we believe that true statement?


Mill says, “however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as dead dogma, not a living truth.” Mill points out that there are people who believe that it is good enough if a person accepts what he is taught as true.  In fact, as we all know, most parents take this position. For example, they teach their children what is right and wrong. They want their children to accept that the things the parents think are wrong are in fact wrong. They want their children to accept that the things the parents think are right are in fact right. That is their goal. This is the goal of indoctrination.

Indoctrination is particularly robust in cases of religion—perhaps because rational argument and debate are so difficult and as a result the views of the children will be, it is believed by the parents, forever weak and subject to undermining by others. And that will not do. Mill strongly disagrees. So do I.

Indoctrinators don’t care if the object of their attention has any knowledge of the grounds of their opinion or not. What counts is the opinion, not the reason for the opinion. It matters not to these parents that the children could not make a tenable defence of the opinion against the most superficial objection. What matters is that the opinion is firmly held no matter what. Naturally people who indoctrinate others “if they can once get their creed taught from authority naturally think that no good, and some harm, comes of its being allowed to be questioned.”

The problem with this approach according to Mill is that such an opinion can never be rejected wisely, but actually can be rejected rashly and ignorantly. That is because one can never shut out discussion completely no matter how hard one tries. When rational discussion creeps in, as it always eventually does,

beliefs not grounded on conviction are apt to give way before the slightest semblance of an argument. Waiving, however, this possibility, assuming the true opinion abides in the mind, but abides as a prejudice, a belief independent of, and proof against, argument—this is not the way in which truth ought to be held by a rational being. This is not knowing the truth. Truth, thus held, is but one superstition the more, accidentally clinging to the words which enunciate a truth.

 This is what faith is. Faith is not based on grounds or reasons. In fact, often it is held against grounds or reasons.  Mill says, it is held like a prejudice.  That is because it is not based on reason and evidence but something else—like a superstition. It is not enough to be told the grounds or reasons either. That is still indoctrination. It is not lived; it is not experienced. It is a dead truth. And how much is that worth?


We all need Heretics


If heretics feel reticent to discuss the consequences of their dissent there is never any fair and thorough discussion of heretical opinions and we miss out on the possibility that something of value might arise from such discussion. We are then the poorer for that. It is our loss. As John Stuart Mill said,

“But it is not the minds of heretics that are deteriorated most by the ban placed on all inquiry which does not end in the orthodox conclusions. The greatest harm done is to those who are not heretics, and whose mental development is cramped, and their reason cowed, by the fear of heresy.  Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral? … No one can be a great thinker who does not recognize, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead.  Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think.”


We need our rebels, mavericks, and dissenters. We don’t need more people that just agree with us.

Yet Mill acknowledges, “Not that it is solely or chiefly to form great thinkers that freedom of thinking is required. On the contrary, it is as much and even more indispensable to enable average human beings to attain the mental stature which they are capable of.” This is extremely important! Freedom of discussion and thought is crucial for ordinary people, not just great intellects. People like me. People like you. We must be free from constraint—social or legal—to think freely in order for each of us to be the best that we can be. If we allow ourselves to be cowed, we will not be the best we can be. Our “mental development will be cramped.”  For years, I kept my religious views to myself or to a small circle of compatible thinkers. This was a huge mistake! I allowed my mental development to be cramped! I am now horrified of what I have done. I will never be a great thinker, but until I free myself to speak and think and debate freely I will not be the best thinker I can be.


Each of us must break the yoke of authority, even authority with “mere” social power, for that is often the most pernicious power. We have to break out so that we can become the best it is possible for us to be. If we don’t do this, we choose to accept a second-rate self—a poor and paltry thing. And, of course, as Mill argues, all of us will lose out. We all need the heretics!


Social Intolerance


Even though we no longer put radicals to death for their opinions, John Stuart Mill argues, we must take a lesson to heart. Currently, “our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion,” and that is just as bad.  In other words our censoring pressure is just more subtle. That is not good enough. We still must avoid, at all costs, censoring those opinions. We must allow them to be discussed freely, because they might be right, and we will never know if they are right or wrong unless we permitted them to be fully and freely debated by one and all.


It is often comfortable for us to bar fractious debate by “soft” means that do not include fines or imprisonment as was formerly done for we can feel at peace. This is often a convenient way to have peace in the intellectual world, but, as Mill says,

“But the price to be paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind.  A state of things in which a large portion of the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts, and attempt, in what they address to the public, to fit as much as they can of their own conclusions to premises which they have internally renounced, cannot sent forth the open, fearless, characters, and logical, consistent intellects who once adorned the thinking world.”


This is a particular problem in the modern world. For example, I have heard some intellectuals feel constrained to keep their opinions to themselves for fear of reprisals from those in authority.  Sometimes they are referred to as “the woke” authorities. Conservatives in universities sometimes claim they are not allowed to speak freely by such pressures by those leftists in authority.  To the extent this is true those liberal intellectuals must be compelled to change their suppression of free thought. Suppression of free thought causes us all to suffer for we lose the benefit of hearing dissenting opinions.


That is why we must do everything, as Mill said, to ensure that “the open, fearless, characters, and logical, consistent intellects who once adorned the thinking world” are entirely free to engage with their discussion at all times in a fearless way without any social pacification! We need that. That is for our benefit; not just theirs! We must never abandon or constrain anything that might enlarge the minds of others so that they feel free to engage in the most daring of speculations on the highest subjects.

Sacred Truths

Some people believe their “truths’ because they have faith in them. Others rely on hunches. Some rely on the authority of parents, teachers, or experts. None of these according to John Stuart Mill are solid grounds for action. This is what Mill says:

“There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting  and disproving our opinion is the very condition which justifies us in assuming its truth for the purpose of action; and on no other terms can a being with human faculties have any rational assurance of being right.”

It is for that reason that we don’t believe Putin is right when he says he was justified in invading Ukraine. Or we don’t believe the Ayatollah that Salman Rushdie should be killed? Or that gays are bound for hell because the Bible or the local preacher the says so.

Mill makes it clear that no opinions should be exempt from this process. He points out that there are some who urge that some principles are so certain that we should not be permitted to question them. But Mill disagrees. All opinions and all principles, even fundamental principles should be subject to challenge in this way. Only then can we really be certain. Or at least as close to certain as we can get. This is the result of living in an age that Mill says some call “destitute of faith, but terrified of scepticism in which people feel sure, not so much that their opinions are true, as that they should not know what to do without them—the claims of an opinion to be protected from public attack are rested not so much on its truth, as on its importance to society.” Of course, as Mill points out, this just shifts the problem, for it is just as important to have an infallible judge to determine which opinions are noxious or useful as to determine those that are true or false. In either case, the opinion must be allowed to be free to defend itself.

The real problem, Mill says, is not feeling sure of a doctrine, which he calls the assumption of infallibility, but rather the undertaking to decide this question for others, without allowing them to hear what can be said on the contrary side. This must be denounced no less when it is done to “protect” solemn convictions. All opinions must be free to defend themselves, even the sacred ones that are most important to us.

All truths should be subject to debate and argument. None are exempt. Not even sacred ones. That is what free speech means. All “truths” can be freely challenged.

Abortion Rights and Wrongs: Back to the Uncertainty Principle

I recognize that the Uncertainty principle can be used against me. I argued that Russell’s uncertainty principle, that it is wrong to inflict a certain harm to achieve a dubious good means that neither the doctor nor the mother should be prosecuted for choosing abortion.  That is because, I said, it is uncertain whether or not the mother or the doctor or both are committing a serious moral mistake. Some say yes others say no. There is room for reasonable people to disagree.


However,  does this same principle not mean neither the mother nor doctor should participate in an abortion, because as I have argued, it is uncertain whether or not that is justified. Since it is uncertain the mother and doctor should not inflict certain and serious harm—namely death of the foetus—because they might be wrong. The uncertainty principle works both ways!


That is true, but that is why I argued for adopting both a pro-life and pro-choice position. The mother and doctor should have the right to choose abortion. The choice should be theirs. But—at the same time—although I hope they choose life, they should be allowed to choose abortion! Because of that uncertainty! They should decide, not the rest of us. In case of uncertainty, the mother and her medical advisor should decide what is right and what is wrong in the circumstances. If we could be certain we as the public could have the right to decide just as we do in case of murder. We say murder is certainly wrong and if someone commits murder they should be punished by the law. Few disagree with this.  I think this is a consistent position. What do you think?


Dignity and Life: Pro-Life and Pro-Choice


Abortion rights of women versus the right to life of the foetus have been the focus of numerous cases before American and Canadian courts for decades. Frankly, in neither jurisdiction has the matter been satisfactorily settled. I think the reason is that no court has properly delineated those rights and how they must be resolved. I am going to try to tease out a better foundation for the law.

First, I have always believed that the right to privacy is an odd basis for the US Supreme court to strike down legal prohibitions against abortion as it did in the landmark case of Roe v. Wade. I always thought that was a weak position and could later be challenged by subsequent courts as in fact now recently happened in the Dobbs case.

In my view no one should be surprised. Privacy was always a weak foundation for such an important right and everyone should have been wary of it. As a result decades of women and their allies did not bother trying to persuade states to open up abortion rights because they felt they did not need the states on their side because they had the Supreme Court on their side. Now we know what a weak position that was. Frankly, the same thing has happened in Canada. There is no proper foundation to the right to an abortion. There is no constitutional protection for that right in Canada, just as there no longer is the United States.

Charles Fried, is a lawyer who formerly represented the United States under President Ronald Reagan. He has impeccable conservative credentials but now argues that Roe v. Wade is based not just on privacy, because an abortion is a medical procedure in a hospital involving many people. He now thinks the right to an abortion is based or grew out of, a decision of Justice John Marshall Harlan II in dissent in the 1961 of Poe v. Ullman, a case in which the court left standing a Connecticut law forbidding the use of contraceptives but Justice Harlan’s dissent provided what Fried then considered, and still considers to be the more solid “foundation of the law of privacy and personal dignity”. It is a combination of the two rights. It is a fundamental aspect of the dignity of women that they control their own reproductive processes. To him (and to me) that seems like a stronger foundation because it accords more with what people actually believe. They believe, that whether or not a woman may have an abortion should be determined by her alone. But how do I get to this position?

 When I was a young lad in university, I wrote an essay on the subject of abortion rights. I thought my argument was pretty sound at the time. I still think the basic idea was sound; I just think I could have expressed it with greater elegance. I will try my best to that now.

I had not at the time read a very valuable chapter of a book by Bertrand Russell. It was not written on the subject of abortion at all, but I think that is views can shed a powerful light on the dimly subject of abortion rights. I referred to his position in an earlier post and referred to it as “the Russell Principle” and the “Uncertainty principle.”


Russell talked about uncertainty in that essay and made some very important points that I think bear on this issue. My reasoning (which I still believe is solid) was based on what I believed was the fundamental principle of criminal law, namely, that we must only convict if it can be proved beyond a reasonable doubt (not absolutely) that the accused is guilty. Why is that the case. I would say the rationale for this is the more fundamental idea that we should not inflict a certain evil on people for the purpose of a good that is doubtful. The same applies to the act of prosecution itself. An action such a destroying a foetus should only be prosecuted if it can be established beyond a reasonable doubt, that the harm inflicted on the mother or physician is less than the harm avoided. Personally, I cannot be certain enough to justify prosecuting the mother or the physician.


The state has no right to impose its view on her and prevent her from getting this procedure. The state should not be able to impose on her the obligation to carry the child, at least up to viability. The state has the right to prohibit murder because it is certain that his is a harm which justifies the interference with personal freedom. There is no such certainty in the case of abortion as I argued in an earlier post.

I think it is imperative for those of us who enter the fray of the abortion debates to recognize and never forget that there is more one than side to that debate. We must recognize and even empathize with those who take a contrary view. In the fight over women’s reproductive rights versus the right of the foetus to life it is not a case where all sweetness and light is on one side. Of course, those who enter this debate usually strongly disagree. Their side is pure good; the other side is pure evil.

The late writer David Foster Wallace hit the issues squarely when he said, much more eloquently than I did in 1969 in my university essay. Wallace said in effect that the only coherent position was to hold both positionsi.e. pro life and pro choice. That has been my position for all these years, but naturally, I did not express it as well as Wallace did when he said,


“In this reviewer’s opinion, the only really coherent position on the abortion issue is one that is both Pro-Life and Pro-Choice…

Argument: As of 4 March 1999, the question of defining life in utero is hopelessly vexed.  That is, given our best present medical and philosophical understandings of what makes something not just a living organism but a person, there is no way to establish at just what point during gestation a fertilized ovum becomes a human being.  This conundrum, together with the basically inarguable soundness of the principle ‘when in irresolvable doubt about whether something is a human being or not, it is better not to kill it’, appears to me to require any reasonable American to be pro-life. At the same time, however, the principle ‘when in irresolvable doubt about something I have neither the legal nor the moral right to tell another person what to do about it…is an unassailable part of the democratic pact we Americans make with one another…and this principle appears to me to require any reasonable American to be pro-choice.

This reviewer is thus, as a private citizen and an autonomous agent, both Pro-Life and Pro-Choice.  It is not an easy or comfortable position to maintain.  Every time someone I know decides to terminate a pregnancy, I am required to believe simultaneously that she is doing the wrong thing and that she has every right to do it.  Plus, of course, I have both to believe that a Pro-Life + Pro-Choice stance is the only really coherent one and to restrain myself from trying to force that position on other people whose ideological or religious convictions seems (to me) to override reason and yield a (in my opinion) wacko dogmatic position.  This restraint has to be maintained even when somebody’s (to me) wacko dogmatic positions appears (to me) to reject the very Democratic tolerance that is keeping me from trying to force my position on him/her; it requires me not to press or argue or retaliate even when somebody calls me Satan’s Minion or Just Another Shithead Male, which forbearance represents the really outer and tooth-grinding limits of my own personal Democratic Spirit. “


Of course, this is precisely not how we currently think about things. As Katie Roiphe said, in an interview on Amanpour & Company,

“We tend to believe that people who disagree with us are lunatics, or they’e  evil, or they are kind of the scum of the earth…The idea that you might take the best argument of the other side and to just think about it. I am adamantly pro-choice myself but I think it is kind of important not to engage in the mob tribalism that has brought us to the situation where we have the Supreme Court that we have, where we had Trump elected and I think that that habit on the right and on the left is very toxic and very dangerous and the David Foster Wallace quote kind of opened the door for me when I read it because I did think wait, what about if we did stop for a second and listen to other people and listen to the arguments of the other side instead of immediately demonizing anybody who thinks differently from us.”


Of course, in this era of deep polarization, both sides are likely to unswayed by a position like this that sees some sense in the other side. Both sides prefer to think of the other side as inherently of the devil. No one wants to actually consider the position of the other, which they believe is obviously wrong.


This brings me back to the position that Charles Fried espoused, namely the centrality of dignity that ought to be present in this discussion. First, let both sides of the dispute see that the other side is entitled to their position. Their right to dignity demands that they have the right to speak their mind freely and respectfully. And they deserve to be heard.

Secondly, let the pregnant woman have her dignity. Let her make this enormously difficult decision. She is in the best position to do that, not us braying from the ramparts of political debate. I say, let the pregnant woman decide. I hope she chooses life, but if she chooses otherwise I intend to respect that decision.

Democracy and Abortion rights


Charles Fried, the Attorney General for Ronald Reagan once argued before the U.S. Supreme in favour of prohibiting abortion rights in 1989 in the case of Webster v. Reproductive Health Services. In that case a Missouri statute forbade the use of state funds or facilities for abortions and on behalf of the federal government he argued that Roe V. Wade should be overturned. He thought abortions should only be permitted in the most extreme cases such when the life of the pregnant mother was at risk. Now in 2021 he has changed his mind. In 2021 he believed the rule of law required the court to uphold the old precedent of Roe v. Wade. (I don’t actually agree with this point).


Many thought the American law was settled by the case of Roe v. Wade. It has been the law for decades. Recently,  case went to the American Supreme Court out of Mississippi that challenged this.  This was the Dobbs case. It was the case that  overturned Roe v. Wade  The current Supreme Court  is packed with conservative judges after former president Donald Trump appointed 3 new justices to the court.


Currently, polls show that 60% of Americans believe that Roe should remain the law, but a very vociferous minority strongly believes that it should be overturned. The court ignored the majority as it should if the law requires it. Many American women are shocked that they have lost a right they have had for decades. How can that be?


Charles Fried said before the Supreme Court decided to overturn  Rowe v. Wade  “To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.He said that because he considers himself a true conservative in the style of Edmund Burke. As Fried wrote, “In 2005, testifying in favour of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe.

Fried now says that Roe has grown roots in American law and is therefore a firm constitutional right, which the court should not pull out by those roots. But that is what they did. He said the current Supreme Court is busy tearing up rights by the roots that have been there for a quite a long time. Examples he gave were the Voting Rights Act of 1965. In a recent case it said we don’t need those  rights anymore. As a result America has been flooded with voter suppression statutes. The right to vote has been stripped in many state since then. Fried believes the court has done this in order to please a minority “on one politically charged issue after another.”  Fried considers that constitutional vandalism.


Those are strong words considering that the Supreme Court of the United States, just like the Supreme Court of Canada, is permitted to overturn its own precedents. It is not bound by those precedents though both courts have acknowledged that this should not be lightly or often done for it does undermine certainty of law. Yet, it does do that from time to time, for example famously, in the case of Brown v. Minster of Education in the U.S. where doing so has been applauded by liberals even though long standing precedents were rejected. They did not consider that vandalism. Fried considered it the growth of the common law. Law changing with changing with changing times. How is that different?


By asking this question I do not want to be seen as approving the politicization of the American Supreme Court. That is another issue. This is what Justice Sonia Sotomayer said in the current Mississippi case before the court,

“Will this institution survive the stench that his creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It is what Casey talked about when it talked about watershed decisions. If people actually believe that it’s all political, how will we survive? How will the Court survive?”


To Katie Roiphe, the Director of Cultural Reporting and Criticism Program at NYU, it does seem that this is the Supreme Court entering the political fray and taking a side with one group of partisans against another. She sees it crippling to have the Supreme Court appear to part of “partisan fighting and this kind of political rage,” when it should be above the fray. But isn’t that what happened when the Supreme Court originally decide Roe? She enlisted conservative icon Justice Scalia to support her argument. Justice Scalia had said in 2015 in the SSM case,

“a system of government that makes the people subordinate to a committee of 9 unelected lawyers does not deserve to be called a democracy… This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.…”


Those are powerful words by Justice Scalia, but we must remember they were uttered in a decision of the US Supreme Court to recognize same sex marriage by overriding a law enacted by a democratic government. Many liberals have widely praised the decision of the US Supreme Court, but will they like it so much, when such reasoning is used against their own holy causes, such as voting rights, or laws permitting unlimited rights to donate funds to political candidates? Democracy is complicated and we should be careful about over simplifying it.


Others see the current trajectory of the American Supreme Court and American law towards authoritarianism. As Mary Fitzgerald of Open Society Foundations in the New York Times, “If Roe falls, the United States will instead join a small cadre of increasingly authoritarian countries that have become restrictive on abortion in recent years.” Justice Fried agrees with Fitzgerald because he sees the 3 Justices appointed by Trump as joining “a process of undermining the ability of the court to reign in an authoritarian president…If we get an authoritarian president in 2024, the court will not be there to protect us.”


Charles Fried made the important point that this is not unrelated to the issue of gerrymandering. The process of gerrymandering where voting district are designed to put as many possible voters in one district to dilute the effect of that group. It  is inherently undemocratic for it gives some people a more powerful vote than others. Gerrymandering allows a minority to get into power and do what the majority does not want. “The American Supreme Court should have put an end to it.” Even though gerrymandering has created unfair and inherently undemocratic systems of government, Fried said,

“the Supreme Court said ‘not our department.’ Well if it isn’t their department to protect democracy I don’t know what is…I do have a long perspective. I was born in Prague in 1935 Czechoslovakia was a real democracy and the demons of hell came out and spoiled that fro 50 years! Now I see those people remerging and I hear the same tunes and it scares me.

And those are the comments from a Republican who served a Republican president. A true conservative in other words. I wish we had more like him.