GAMBLING ON HAPPINESS : LOVE, KNOWLEDGE AND RISK

AN ESSAY

For three years, my close friend Joe Simeone composed an operatic adaptation to the 1952 play "Dial M For Murder." Last week, I attended an opening in which he presented several passages from his work. In brief, the opera follows the same intricate plot as the play: A man named Tony blackmails both his wealthy wife, Margot, and another man named Lesgate; Tony exploits the blackmail to entice Lesgate to murder his wife; the plan goes wrong and Margot kills Lesgate in self-defense; Tony manipulates the evidence to pin the murder on Margot; the police arrest Margot and she is sentenced to death; an enterprising police detective worries about the verdict and discovers that Tony orchestrated the result; Margot goes free and discovers her husband's betrayal.

Through the operatic form, Joe Simeone tells the story with a keener eye for emotion than plot. He did not compose an "operatic thriller;" he composed an opera. As such, he explores the emotional relationship between Tony and Margot with greater detail than the play. At the outset, Simeone tells us that Tony's and Margot's marriage was "loveless," but that Tony had recently begun to shower affections on his wife. To make that point, the opera begins with a sweeping aria in which Margot reveals that she has "rediscovered" her love for her husband. This is ironic, of course, because Tony has already betrayed her; he is even planning to kill her. During the aria, Margot sings a remarkable line: "It's a risk to believe love is real."

Margot may seem naïve for daring to believe that her devious husband actually loves her. But she is not alone. We all want love in our lives because love is a tantalizing pathway to happiness. Yet love is a troublesome thing because it cuts in two directions. We can love and we can be loved. Real happiness exists only when both elements find expression in a relationship. When only one person loves, the result is unrequited disappointment because the other does not return the feeling. And when only one person receives love, the result is awkward discomfort. Put another way, love only really "works" when there is no disparity between the emotions on both sides.

Sigmund Freud said as much. In Civilization and its Discontents, Freud explained that human beings generally "strive after happiness; they want to become happy and remain so." Civilization and its Discontents (Strachey, trans. p. 25). He went on to explain that happiness has both a "positive and negative aim," namely: "[the] absence of pain and unpleasure and the experiencing of strong feelings of pleasure." Id. Additionally, Freud noted that happiness cannot arise as long as unhappiness exists in a person's life. And unhappiness is "much less difficult to experience" than happiness. Id. at 26.

Freud identified three main sources for unhappiness: (1) our own bodies, which are doomed to aging, pain, discomfort and decay; (2) the external world, which can "rage against us with unimaginable forces of destruction;" and (3) our relations to other men. Civilization and its Discontents at p.26. He went on to say that unhappiness flowing from our "relations to other men" represents the worst possible unhappiness: It is the unhappiness of betrayal, deception, unfaithfulness, personal disappointment, spurned love, heartbreak, frustrated yearning and all the other bitter emotions that arise when our relations with others do not follow the path we wanted.

If so much unhappiness can flow from relationships with others, why do people bother with them? Freud posed the same question. He offered one surefire way to avoid "relationship unhappiness:" "Against the suffering which may come upon one from human relationships the readiest safeguard is voluntary isolation." Civilization and its Discontents at p. 27. He called this the "happiness of quietness." By eliminating a source for unhappiness, a person makes it easier to experience happiness.

But Freud acknowledged that "voluntary isolation" is not very satisfying. After all, mere freedom from unhappiness is nowhere near as fulfilling as experiencing positive happiness. For that reason, Freud explained that human beings constantly gamble on love to satisfy their "passionate striving for a positive fulfillment of happiness." Civilization and its Discontents at p. 32.

Put another way, freedom from unhappiness and pain is not enough. People want the ecstasy and joy that flows from real, positive happiness. And positive happiness flows most strongly from that most dangerous category: Relations with other men. Still, the potential emotional payout from love is so great that people all too willingly take their chances with it. Nonetheless, Freud warned: "The weak side of this technique is easy to see; otherwise no human being would have thought of abandoning this path to happiness for any other. It is that we are never so defenseless against suffering as when we love, never so helplessly unhappy as when we have lost our loved object or its love." Id. at 33.

Against this background, Margot sang more than she knew when she observed: "It's a risk to believe love is real." Love is an extremely dangerous risk. When a person dares to abandon himself to love, he makes himself "defenseless against suffering;" he even risks "helpless unhappiness" if he does not get the emotional payout he expects from the relationship. Worse, these unhappy results depend exclusively on "relations to other men." Specifically, the "love pathway to happiness" depends on how another person acts and feels. We humans are subjective creatures. We know only what we sense. Facts exist only to the extent that we manifest a subjective belief in their reliability. In that light, it is very difficult to gauge whether another person feels any emotion as we do, let alone love.

Beyond risk, love is about knowledge. Freud said that love has two components: Loving and being loved. We only feel love's joy when we know another person feels strongly about us, too. It is not enough to feel strongly about another person. Rather, love's intoxicating pleasure only really arises when we are satisfied that another person feels as strongly about us as we do about them.

But how do we know that? It is hard enough to know what exists in anyone else's mind. Yet when we risk our happiness on love, we force ourselves to decipher what another person feels and thinks. This is extremely difficult; in fact, it is nearly impossible. There is no way to know for certain whether another person loves us, because we cannot literally step into that person's mind. Rather, we must examine secondary facts to make inferences about the other person's beliefs. This is an imperfect method at best, but it is the only one we have. Even direct statements from our love interest are not definitive proof of what he feels. Humans are, after all, infamously dishonest.

In this light, it is easy to see that love is no easy thing. It does not just a risk; it demands some faith, too, because the facts necessary to establish love are unknowable.

Again, the question arises: With these thematic difficulties in mind, why bother with love? Consider just how much is at stake. By daring to love, a person opens himself to boundless unhappiness and pain flowing from "relations to other men." True, if his love pans out, he feels overwhelmingly positive emotions: That is the potential payout from the "risk." But in order to experience love, a person must satisfy himself that another person feels a certain way. It is impossible to certainly know what another person feels, so love actually involves a double risk: (1) Risking the relationship in the first place; and (2) Risking that a person will feel the way you expect. Disappointment can arise from either risk. There is nothing you can really do to stop it; you can't control how another person thinks or feels. In this sense, love is also a risk because a person must entrust his happiness to the subjective whim of another person over whom he has no control. And because human beings are notoriously untrustworthy and inconstant, it almost seems an unreasonable risk.

If love is so unreasonable, then why do so many people pursue it? The fact that human beings--like Margot--blindly risk love is testament to the assertion that reason does not rule us. If human beings were entirely rational, they would probably never love. After all, rational thinking involves balancing risks against benefits. A rational mind analyzes the potential pain that could result from a transaction and queries whether the potential pleasure is worth the chance. As Freud explained, love can yield immeasurable pain. And because that pain flows from forces largely beyond our control (i.e., the whims of others), it really makes no rational sense to take the risk. Although love offers a huge benefit in pleasure, a reasonable man would immediately see that it always presents an intolerable risk in pain. That risk would invariably outweigh the benefit in pleasure.

But we know that human beings live to love. They cast reason aside. They take the risk, even though it is unreasonable. Put simply, love's emotional payout in happiness is so intoxicating that it overwhelms human reason. Love's pleasure is so hypnotic that it submerges all potential pitfalls. Among those pitfalls is the dangerous need to place individual emotional well-being in the hands of another person--and that person is probably not trustworthy. Men ignore those risks when they love because it just feels so, so good. If reason held men in check, they would never allow themselves to remain blind to the dangers. But blind they remain; they dive headlong into the risks because it just feels so damn good.

"It's a risk to believe love is real." In one line, Margot expressed the timeless--yet perilously uncertain-- human quest for love. She hinted at the risks. She knew there was a danger. But love made her feel so good that she willingly blinded herself to it. She suspended her reason. Objectively, that might appear foolish. But we all have done it. And we probably always will. Love is never objective.

In short, we all desperately want positive happiness. We are not content with the "happiness of quietness." No, we crave "relations with other men." We gamble on positive happiness by playing familiar games. Those games are rarely reasonable. In fact, most are extremely dangerous.

Love is probably the most dangerous game of all: Enticing, risky, unknowable, unverifiable, tempestuous, fickle, maddening; yet offering pleasure beyond imagination. It is a recipe for unreasonable risk every time.

DOMINIC CARTER, EVIDENCE LAW, HEARSAY AND TRUTH : IT IS NEVER EASY TO SAY WHAT "ACTUALLY HAPPENED"

AN ESSAY

Earlier this week, I read about Dominic Carter, a disgraced New York TV anchorman. Last year, authorities charged Mr. Carter with domestic abuse after his wife complained that her husband tried to strangle her during a fight. She later recanted her story, claiming that a mysterious "day laborer" was the assailant, not her husband. That did not faze the prosecutor. He proceeded with the case against Mr. Carter.

Mr. Carter appeared in Queens County court to answer the charges last week. In addition to flatly denying that he "had done anything wrong," he begged the judge to dismiss the case because he was "too important" and had "many friends in New York State government." He dropped several names, including Judith Kaye, the Chief Judge of New York's highest court. The judge was flabbergasted, admonishing Mr. Carter: "Don't drop names in here! You know better than that!" She did not dismiss the case. Mr. Carter's employer publicly condemned his conduct and appeared ready to fire him.

Mr. Carter decided to fly to Kansas City after his hard week back home. While waiting to take off, he stood up and made his way toward the restroom. Although no one exactly knows what happened next, a flight attendant screamed: "I want this man off the plane. He tried to assault me." Mr. Carter vigorously denied the accusation, explaining that he "must have bumped into her" while "bending over to tie his shoes." In any event, the flight attendant won the debate and Mr. Carter was ejected from the plane.

Police arrived to investigate the complaint. They determined that the flight attendant caused the altercation. They did not file charges. Mr. Carter took the next flight without incident.

I recount this story because it made me think about proving things. Evidence law represents our legal system's attempt to inscribe past events with "truth." I have written many times that it is impossible to know "the truth" about anything without being personally present to perceive it with our own senses. Yet we must rely on reports to formulate our beliefs about almost every event in our lives. We cannot sense everything that happens on earth. So we must put our trust in stories. Evidence law tries to assign credibility to stories. It also tries to screen out information likely to confuse the truth rather than find it.

Consider Mr. Carter's relatively banal story. The question is "what happened on the plane as he walked down the aisle?" Did he "deliberately assault" the flight attendant? Or did he really bend over to tie his shoes? Was it an accident? How do we know? We certainly weren't there. I read about the conflicting stories in the newspaper. How, then, can we satisfy ourselves about "what actually happened?"

Let's suppose the authorities decided to put Mr. Carter on trial for assault. To prove assault, the State would have to show that Mr. Carter intended to touch the flight attendant in a harmful or offensive way, and that he did touch her in such a way. From a philosophical standpoint, it is extremely difficult to prove intent, because intent exists solely in another person's mind. When threatened with punishment, a person rarely confesses to what he "actually intended to do," so evidence law requires us to look to external factors to "infer" intent. In other words, we must look to observable facts (ie, behavior, words) to conclude an unobservable fact (the actor's intent).

Mr. Carter's defense would depend upon his ability to show he did not "mean" to offensively touch the flight attendant. That is an intent defense. But to prove his intent, he would have to point to external factors. The best way to do that would be to call witnesses who directly perceived the event, preferably from a close distance. They could say what they saw: Did he slap the woman? Did he raise his arms in a threatening way? Did he "look angry?" Did it "look like he meant to hit her?" These are visual perceptions, and they carry the most weight when attempting to convince a listener to adopt "the truth" about a particular event.

But what about words? We can correctly infer a person's intent based upon his verbal conduct. What people say (and how they say it) can lead us to guess what they feel, intend and think. Still, whenever words enter an evidence question, the analysis becomes much more complicated. Everyone knows the word "hearsay," but fewer know the legal definition. In popular understanding, "hearsay" simply means "reported speech from someone else." In evidence law, however, it has a much more technical meaning. It means any "out-of-court statement offered to prove the truth of the matter asserted." See Federal Rule of Evidence 801(c). "Statements," in turn, mean "oral or written assertions or nonverbal conduct of a person, if intended by the person as an assertion." See Fed. R. Evid. 801(a). Applying these definitions, we see that even the defendant's own words can be hearsay if he repeats them in court. In short, hearsay does not have to come from "someone else," nor does it even have to be verbal.

This introduces a serious problem in criminal cases in which the defendant tries to explain what he intended to do. At the same time, the prosecution has an advantage over the defendant because another evidence rule permits a "party-opponent" to introduce an "opposing party's statement" against him. See. Fed. R. Evid. 801(d)(1)(A). This means that the opposing party here (namely, the prosecutor) could use Mr. Carter's statements against him, but Mr. Carter could not use his own statements to defend himself. For example, if Mr. Carter wanted to prove that he said "I was just bending over to tie my shoes" after the flight attendant accused him, he could not testify that he said it because it is "hearsay." But if the prosecutor brought in a witness who said Mr. Carter exclaimed: "Get outta my way, biatch" on his way down the aisle, it would be fully admissible against Mr. Carter as a "statement by a party-opponent."

This is a bizarre result. It almost seems unfair. After all, shouldn't people get to say what they said on earlier occasions in order to explain themselves? When the question involves individual intent, the individual is really the only one who can confirm or deny it. Yet evidence law turns away from this "best source" because it presumes that accused individuals will not tell the truth.

Thankfully, evidence law offers another way for Mr. Carter to get his statements before the jury. Although he could not testify that he said: "I was just bending over to tie my shoes" after the flight attendant accused him, a different witness could. Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for statements relating to the "declarant's then-existing state of mind," including their "intent." In this case, if a nearby passenger heard Mr. Carter say: "I was just bending over to tie my shoes" immediately after the flight attendant screamed at him, it could be admitted to show that Mr. Carter did not intend to harmfully touch the flight attendant. It would not be hearsay because the defense does not offer it to prove the "truth" that Mr. Carter actually tied his shoes. Rather, it would offer the statement to prove the declarant's (ie, Mr. Carter's) then-existing mental state: Namely, that he did not intend to offensively touch anyone.

I mention all this to show how difficult it is to prove things. It is even more difficult to prove them according to technical evidence rules that prohibit people from explaining what they actually said, yet permit others to use their words against them.

Do all these rules bring us any closer to the "truth?" I don't think so. In the end, ascribing truth to a story depends as much on available evidence as it does to pure intuition. In my view, lawyers make a colossal philosophical blunder when they think they have a greater claim to "uncovering truth" because they apply technical evidence rules. No man-made rule can change the fact that human beings have limited senses. When it comes to believing something that allegedly happened outside those senses, one man's guess is virtually as good as the next man's.

WHY WE FEAR DEATH

AN ESSAY

Everyone fears death. The word alone strikes fear in us. It is the worst thing that can befall us. When we die, we are no more. No one can talk to us; no one can hear us tell our stories. We see nothing more. We hear nothing. We taste nothing. We touch nothing. We smell nothing. When we die, we can no longer experience anything. Pain no longer terrifies us. But nor does pleasure beguile us. Death cuts off our ability to experience the earthly world with our senses. And we humans are overwhelmingly sensory creatures. When we die, our bodies cease to be—along with all our senses—leaving our flesh to slowly decompose and turn to dust. No one wants to die. No one wants to leave the world of earthly experience.

Or do they? If we assume that death merely cuts off our ability to experience the earthly world with our senses, then death is not a bad option to someone whose earthly experience is unbearable. Because death and experience intertwine, our attitude toward death should depend on whether our experience in life is largely good or largely bad. Yet very few people consider death with such measured detachment. Death is an intellectual roadblock. It befuddles us because we really do not know much about it, at least metaphysically. No one can tell us “what it is like.” We can only speculate. We cannot plan our response to death because no one can provide us with accurate information about it. Death casts us into uncertainty. Human beings always fear things they cannot know.

Beyond uncertainty, we always think that death deprives us of something. Death makes it impossible for us to see our loved ones again. Death takes away our ability to experience joy and contentment. Even if our lives have little joy, we always hold out hope that one day our fortunes will change. Death, however, robs that hope. It completely precludes us from future joy. No matter how bad our lives may be, if we die, we deny ourselves the possibility of a “dramatic turnaround.” Once we die, it is all over. Again, death terrifies and stultifies us because it drives us into uncertainty about our own decisions. Even if our lives truly will bring us no further joy, we cannot certainly know that at the moment we die.

We also associate death with pain. We live our lives to avoid pain. By avoiding pain, we necessarily try to avoid death. When it comes to pain, our fear increases with the quantum of pain we believe we will face. In other words, we fear serious pain more than minor pain. Similarly, we fear terrible anguish much more than serious pain. We know only what we see, and when we see others die, we typically see them experiencing pain before death. We cannot talk to them after they leave us. We cannot know whether that pain continues after death. Again, uncertainty plays a role in our fears: We associate death with pain, and we cannot certainly know whether death ends that pain. Thus, while it appears that death brings peace to the writhing body, we fear the “undiscover’d country, from whose bourn/ No traveler returns.” Hamlet, Act III, sc. i.

But are our fears about death entirely reasonable? Can we use our reason to stay our fears about death? I think we can, at least to some degree. Let us begin with Hamlet. Hamlet’s speech about death provides an excellent overview of the issues a reasonable man confronts when contemplating death. It also reveals that uncertainty plays a central role in any assessment about death.

Hamlet analogizes life—with all its “slings and arrows of outrageous fortune,” “thousand natural shocks that flesh is heir to,” “heart-ache,” “whips and scorns of time,” “[oppressors’] wrongs,” “pangs of despised love,” and “the law’s delay,”—to “waking.” “Waking life,” in other words, exposes our senses to bad experiences, from sheer “bad luck” to every imaginable health problem, emotional hardship and degrading personal insult. Against “waking,” however, Hamlet contrasts the “sleep of death:” “To die,--to sleep;--/ To sleep! perchance to dream: ay, there’s the rub;/ For in that sleep of death what dreams may come,/ When we have shuffled off this mortal coil,/ Must give us pause.” Hamlet agrees that “sleep” metaphorically puts an end to all the evils that can befall us while we are “awake.” But uncertainty about “the dreams” that lurk in that “undiscover’d country” checks his enthusiasm for death. His uncertainty about death forces him to choose life, remarking that “conscience does make cowards of us all,” prompting us to “bear those ills we have rather than fly to others that we know not of.” See generally, Hamlet, Act III, sc. i, lines 56-90.

Hamlet decided against death based on an assumption. He used his reason to understand why he feared death. He allowed his fear to conquer him and he preferred to suffer the “ills we have” in life rather than accept “others we know not of” in death. I argue that his assumption was not entirely correct. While Hamlet understood that human beings are sensory creatures who experience pain, joy, humiliation and the “thousand natural shocks that flesh is heir to” while they are awake, he did not grasp that their senses also function while they are asleep. We know from common experience that we are alive while we are asleep. We do not experience as much while we are asleep, but no one will dispute that our senses still function. We can still smell things. We still awake when a bug lands on our foreheads because our nerves transmit the stimulus to our brains. We still feel heat and cold. And we still see things in our sleeping minds, even if our eyes do not register them. Our dreams reflect our senses, even if they are not working at “full speed.” Put simply, we must be alive in order to dream.

But when we die, our senses completely cease to function. They do not function at “half speed,” or even residually. We cannot dream when we are dead. To dream, the body requires living brain tissue, living nerves and a living circulatory system. If we are dead, we do not have these things. In that sense, Hamlet is wrong to fear “dreams in the sleep of death.” Death may look like sleep to the outside observer, but the outside observer possesses his senses. The dead man does not. We cannot speak for the dead man, because we do not know what it is like not to have senses, nor has a dead man ever reported to us what it is like. Hamlet could well argue that we do not certainly know what awaits us when we die, so perhaps we truly can dream without the literal sensory capacity to do so. But this is pure speculation. Applying reason alone, we can say with some certainty that dead people sense nothing, and sensory capability is necessary to dream. Now, this does not completely resolve the question about “what awaits us when we die.” Still, it does provide us a reasonable foundation upon which to temper our fears about death. Hamlet’s reasoning only works if we assume that there is some otherworldly “sleep of death” that completely eludes human sense and inference. That requires some faith and speculation. Reason rejects such entreaties. A reasonable man may still fear death, but he certainly can rule out “dreaming” while he is dead.

So what is death like? And if we cannot dream “bad things” when we are dead, why do we fear it? I think that death is probably very much like dreamless sleep. When we sleep or fall unconscious, our sensory capacity drops to a minimum. Time loses all meaning because our senses convey nothing to us, nor does our brain transmit memories, impressions, emotions or impulses. We are essentially “inert matter” awaiting a sensory recharge. Dreams reflect at least some activity in the brain while we are unconscious. But if we do not dream while we are unconscious, we are truly “out of it.” Nothing frightens us. Nothing moves us. Nothing troubles us; nor does anything please us. All these emotions require functioning senses and living tissue. Sleep temporarily stays the senses and tranquilizes the tissue. Death does this permanently. Dreams may interrupt sleep because the senses and tissue reactivate in a reduced way. But death blocks all sensory function. In that light, we can safely infer that, as a matter of common experience, death and sleep reflect states of unconsciousness. We know what it is like to be unconscious. From a reasonable perspective, then, death only differs from sleep in the sense that we will never come to.

This is what we can reasonably fear: We will not wake up. In fact, this is less fear than bitter disappointment. If we know that we will never wake up from death, we will never get to experience all the good things life can offer us. Our fear stems from the certain knowledge that we will no longer experience anything with our senses. After all, death cuts off our ability to experience the earthly world with our senses. The earthly world can delight our senses as long as we are alive. Death eliminates that possibility. That disappoints us, because we like to delight our senses with earthly stimuli. It gives us joy. When we are asleep, we cannot see our loved ones or go on vacations. Neither can we see our loved ones or go on vacations when we are dead. Nonetheless, who really minds sleeping? People all enjoy peaceful sleep. Perhaps they enjoy it more knowing that their senses will reactivate in the morning. But when they are asleep they are not complaining about anything, especially if they are not dreaming. In a word, sleep—like death—cuts off our ability to experience things, both good and bad. This is not entirely a bad thing.

In past satires, I stressed that we should not fear death because eliminating our ability to experience earthly life with our senses rules out a lot of horrible things. First and foremost, death defeats pain. As mentioned, human beings fear death because they associate it with pain. But pain—like Hamlet’s “whips and scorns” and “the thousand natural shocks that flesh is heir to”—depends upon functioning senses, nerves and living bodily tissue. When the senses no longer function, pain disappears. Death cuts off the ability to experience everything, including the pain that flows from tortured nerves. Death defeats pain because pain depends on the senses, and death shuts down the senses. We can rightly fear pain if we know we will live to experience it. But we should not think that death is painful, because death precludes our ability to experience anything, including pain. In my view, anything that rules out our human capacity to experience bodily suffering is a good thing. While we might permanently forgo the opportunity to positively stimulate our senses when we die, we also permanently lose our ability to suffer negative sensory stimulation. If our lives are full of pain, worry, anxiety, agony, humiliation and hopelessness, death will deny our bodies the sensory capacity to continue tormenting us. In that sense, death is actually an outcome to be wished, not an end to be feared. Sensory experience is a two-edged sword. It can both delight and torture us. Death denies our ability to experience both. If sensory experience in life tortures us more than it delights us, then why should we fear death?

Reason tells us that death is a neutral event. Applying our senses, we can reasonably infer that death looks like sleep. We can also infer that we must be alive to dream. Thus, we can rule out any suggestion that we dream when we are dead. Continuing this reasoning, we also know that we must be alive—with functioning senses—to experience both positive and negative sensory stimulations, from inexpressible ecstasy all the way down to unimaginable agony. Similarly, we can infer that we can experience neither positive nor negative sensory stimulations when we are dead. We can conclude that death cuts off our ability to experience the earthly world with our senses. If reason is our guide, we are left with only two real reasons to fear death: (1) We permanently forgo the chance to experience positive feelings later in our lives, even if current circumstances are bad; and (2) Something happens after we die that eludes all reasonable explanation.

Ay, there’s the rub. Here we encounter the real problem; here we see the real uncertainty. Unless we truly believe that reason answers all our questions, we can never say with certainty whether anything exists or happens beyond reason. Some people believe we must choose between faith and reason. Personally, I believe in reason to the extent that human sense can answer a particular question. My senses tell me that corpses do not possess any sensory capacity. Medical science confirms that a dead brain has no function. My senses also tell me that the senses do not function without a functioning brain, and functioning senses are necessary to experience the earthly world. But my senses cannot tell me whether something happens to us after death, just as my senses cannot tell me whether God exists, or whether my life was fated to move down a particular path. There are unexplainable things in the world. Sense cannot grasp them. We fear them precisely because we cannot know them. Still, I am prepared to trust reason on all questions in which it provides a valid way to answer them. From an abstract perspective, that helps me cope with death.

But we can reasonably fear death if we posit that reason does not give us the whole picture about life. How can we know whether there is a state of consciousness beyond the senses? No living person has ever told us about it. When we die, perhaps we enter some hitherto unknown dimension in which our understanding about experience and sense no longer apply. I don’t know. I just don’t know. Nonetheless, now I am speculating. On this point, I take comfort. When it comes to pure reason, I can prepare myself for death. It is mere sensory shutdown. When it comes to faith, however, I am as lost as everyone else. If there is existence beyond sense and experience, I cannot comment about it. All I can say is that I do not know about it.

INFERENCES, IMPLICATIONS & FACTS

AN ESSAY

In Alexander O’Neal’s R & B hit Fake (1987), we hear about a woman who constantly changes her appearance and tells lies. In sum, Mr. O’Neal “decides” that the woman is “fake” because she changes her name and story too often for his liking; plus she cuts her hair and nails in a different style every day. I always liked this song because it was “convincing.” The singer sets forth “facts” that lead the listener to conclude that the woman is lying. After studying evidence in law school, I appreciated the song even more because it demonstrates the correct way to understand the word “inference.” Many people confuse the noun “inference” and the verb “to infer” with the noun “implication” or the verb “to imply.” The two concepts are very different. “Fake” can help us sort out the differences.

In Fake, Alexander O’Neal sings: “Your hair was long/ But now it’s short/ You said: ‘I Got it cut’/ But I don’t see no hair on the floor.” You don’t need to be a lawyer to grasp Mr. O’Neal’s attack on his subject’s credibility. He tells us that he saw the woman with long hair. Later, he saw her with short hair. She claims that she got a haircut. But Mr. O’Neal sees “no hair on the floor;” in other words, he sees no evidence to substantiate the woman’s story. Mr. O’Neal uses his senses and observations to undermine the woman’s claim. He tells us what he saw, what he heard and he gives an evidentiary reason to doubt the story. It is convincing. And it perfectly illustrates how lawyers use “facts” and “sense” to construct truth in court. In essence, Mr. O’Neal asks us to infer that the woman did not get a haircut from the fact that he saw no “hair on the floor.” If you see a person’s hair on the floor, that means something or someone cut the hair off. One fact proceeds from the other. That is an inference.

To understand inferences, we must understand some underlying terms. First, we need to agree what constitutes a “fact.” We all think we know what “facts” are. Yet if you’ve spent any time studying law—or even watching court shows on television—you recognize that we constantly argue about facts. We never agree on what they are. From a basic perspective, many people believe that a “fact” merely refers to what “actually happened.” Throughout law school, many professors gave exactly that definition. But this definition did not placate me. “What actually happened?” What does that mean? To apply that definition, we must assume that a human being senses something through sight, hearing, touch or taste. He perceived something. Then he tells about what “happened.” It requires an individual perspective. When the individual recounts what “actually happened,” he does not provide his listeners with the same knowledge he has. Rather, he presents his memory, which is necessarily weaker than actual experience. After all, we are sensory creatures. Our emotions and our experiences flow from our firsthand perceptions. If we are “not there” to experience an event with our senses, hearing someone’s memory about it does not provide the same knowledge. It is “second-hand” and far “weaker” than true experience. In my view, it is insufficient to define a “fact” as “something that actually happened.” Facts encompass much, much more. After all, no one doubts that the Revolutionary War “actually happened.” But can anyone present his or her personal memory about it? No. Yet everyone believes that the Revolutionary War happened. Why do we believe things that no living person perceives or even remembers?

I have long struggled to define “facts.” No law professor ever provided a satisfactory answer to this question, so I undertook to answer it myself. Now, facts intertwine with human sense. They also intertwine with human belief. If we perceive things with our senses, we believe them. When I say “belief,” I mean that an individual forms a subjective impression that something is true. A person may believe in something that does not exist; subjectively, he holds an impression that it is true, even if he cannot perceive it. For example, a person believes in God. That means he has the subjective impression that God exists. He believes, even though he cannot see God. We can agree that it is a “fact” that this man believes in God. But we cannot agree that it is a “fact” that God exists.

Why the distinction? To grasp this point, let us attempt to define facts. In my view, a “fact” is any act, event or condition that is objectively verifiable and perceptible to the human senses. Under this definition, we can confidently say that “facts” include more than what “actually happened.” After all, can we say that a person’s “belief in God” “actually happened?” Not really. “Belief” is a “condition,” namely an individual’s subjective impression that something is true. Whether someone holds a belief is verifiable and we can perceive it when the person tells us what he believes. But we cannot perceive God with our senses. He is not “objectively verifiable.” His existence may be a “condition,” but it is not perceptible to us. We cannot ask God whether he exists, and we cannot hear him when he answers. To that extent, we cannot accept as a “fact” that God exists.

Yet there are many other things that we can accept as “facts.” As long as someone could reasonably have perceived an act, event or condition, we can believe it to be a fact. In this sense, belief and fact intersect. For example, if we hear from an accident victim that he was “thrown 20 feet from his car” after feeling a “violent impact from behind,” we can reasonably believe that another car rear-ended him at relatively high speed, even if the victim did not see the car. We even believe that the negligent driver must have been traveling very fast, even though we were not sitting next to the negligent driver to personally see the speedometer before the crash. We believe these “facts” even though we did not perceive them because we make inferences from other facts. An “inference” is a fact we did not perceive that naturally follows from a fact we did perceive. There is nothing intuitive or magical about inferences. They are simply facts we can believe after perceiving other facts. After all, we cannot perceive everything in the world. Our sight and hearing have a very limited range. Yet by perceiving some things, we can infer that other things “must have happened.” For example, if we see blood on the sidewalk, it is a “fact” that there is blood on the sidewalk. We can infer that blood fell onto the sidewalk from some external source. We did not perceive the blood falling. But it is still a “fact” that blood wound up the sidewalk. This is an inference. It is a fact that necessarily flows from a fact we directly perceive. If we see our friend with a black eye, we can infer that something—or someone—struck our friend in the face with some force. We cannot infer anything more from that single fact. To get the full story, we need to investigate further.

Implications present a different question. Unlike inferences, implications do not lead us infallibly to facts. Rather, implications involve our intuition, not our logic. An implication refers to the likely circumstances explaining a particular fact or facts. If we see our friend with a black eye, we can infer only that something or someone struck him in the face with some force. Yet we can draw on our common experience to speculate that our friend probably got into a fight. Most black eyes happen when someone punches another person in the face. The implication here is that our friend got in a fight. Yet that is not an inference. The fact that our friend got a black eye does not necessarily lead to the conclusion that he got in a fight. A branch could have fallen from a tree and hit him in the face. He may have stumbled into an iron bar protruding from a building. We simply do not know the cause. Black eyes invite us to speculate about the facts surrounding the trauma. They offer us numerous implications. Yet we can only make one fair inference: That something or someone struck our friend in the face with sufficient force to cause bruising. That is the only fact that we can deduce from the fact we perceive.

What does it mean to “imply” something? There is a subtle difference between the noun “implication” and the verb “to imply.” Generally, “imply” refers to authority and degree in power and belief. Smaller powers are “implied” in large powers. Smaller beliefs are “implied” in large beliefs. When we speak about “implication” in this context, we normally face some interpretative venture. For example, questions about “implied power” commonly arise in agency problems. If we delegate authority to an agent to “buy us a home in San Diego,” and he winds up spending money on a real estate broker for Southern California, did he have authority to do this? Of course—it was a smaller power implied in his “larger” power to buy a home in San Diego. To achieve the large goal, it is implied that the agent may take suitable, “smaller” actions intended to reach it. It is a question of degree and congruence. When a person has a sweeping mandate—or maintains a sweeping belief—he implies that he can do numerous, unnamed “smaller” things to fulfill his objectives. Similarly, if a person believes in capital punishment, he implies that he believes in imprisonment, too. For to believe in something more severe implies that a person also believes in something less severe in less severe cases.

Many people confuse “imply” and “infer.” For the most part, they substitute “imply” for “infer.” We hear “imply” more often than “infer,” so more people use it. For example, a person might say: “I implied from the dirt on your jacket that you were working.” In fact, the person meant to say: “I inferred from the dirt on your jacket that you were working.” That may not be a fair inference, but the speaker nonetheless attempts to conclude a fact he did not perceive (that the person was working) from a fact he perceives (the dirt on the person’s jacket). “Imply” has nothing to do with it. The “implication” behind dirt on a jacket may be that the person was at work. Work may be “implied” in a dirty jacket. Yet we do not “imply” when we attempt to conclude one fact from another. That is an inference.

So how does this all fit in with Fake? Alexander O’Neal understood how powerful inferences can be when evaluating truth. When he sings that he “doesn’t see any hair on the floor,” he asks us to make several inferences. It is a “fact” that Mr. O’Neal did not see hair on the floor. That is an “act, event or condition” that he perceived with his own eyes. First, he asks to infer that the woman’s claim that she “got her hair cut” is a lie. After all, if there is no evidence to suggest a haircut, then we cannot rightly believe that the woman got her hair cut. If she had gotten her hair cut, we would have perceived a “fact” that leads us to that conclusion, namely, “hair on the floor.” Common experience tells us that when we get our hair cut, our hair falls on the floor and we can see it. Even if we walk into a barbershop after a person gets their hair cut and we see their hair on the floor, we can infer that the person (who now has short hair) just got his hair cut. That is a fair inference. Here, however, Mr. O’Neal tells us that he saw no evidence to substantiate the woman’s claim. We can “infer” that her claim is untrue—her untruthfulness is an “act, event or condition” that naturally flows from the “fact” that there is no hair on the floor.

Lastly, Mr. O’Neal asks us to infer that the woman did not get her hair cut. This has nothing to do with her trustworthiness. It is a straightforward inference. If we spend time around a person and never see their hair fall to the floor, we can correctly infer that they did not get their hair cut, even if we were not there to perceive it. That fact “naturally flows” from the fact we perceive.

I mention all this because “facts,” “inferences” and “implications” are words that we typically use without conceptual clarity. Even lawyers do not properly use these words. It is worth making the effort, however, to tease out the subtle distinctions between these words because they help us construct “truth.” In this context, truth refers to “human perception.” We believe what we perceive, and if we are not “there” to perceive something, we believe what makes logical sense to our eyes and ears. Inferences make perfect logical sense. They allow us to believe “facts” without ever “being there” to perceive them. That is an extremely useful tool. When we precisely understand inferences, we can more fairly judge what we see and hear. It is difficult to sort out the truth in this world. When we approach it with some logical consistency, it makes our job significantly more bearable. In this narrow approach to truth, our senses provide all the answers.