There is no such thing as common sense. When I attended college, several decades ago, I was required to take a course in law, somehow connected to business. I was delighted at the prospect because I had only one experience with a lawyer before, which concerned research for a patent that I applied for when I was a teenager. The course was built around cases that had already been tried and conclusions reached. We students were given the “facts” and based on testimony and evidence given at the trial or hearing, independently, we were to reach a conclusion. Of course, we did not know the real outcome before we studied the case; we were graded on our results as compared to the “official” court decision. If we happened to reach the same conclusion as the judge, we were golden, but if we reached another outcome, we were ridiculed or something worse – we got a “D” grade.

As it turned out initially, I naively based my decisions on what I thought were principles of justice, fairness, righteousness, logic, ethics, and common sense. During the first half of the semester, I was striking out more often than not. My good grades or correct decisions looked more as if they came from the flip of a coin, rather than the principles I learned as a child. I argued to no avail; I was really out in left field with my idealistic upbringing. After all, some judge had made the real-world decisions long ago, but as far as I was concerned, there were many more innocent people in jail than were thugs.

What to do? Stick to my principles, or change my attitudes about law and the pursuit of happiness and try to pass the course? Since I had a good grade-point average and I was in my sophomore year, I opted for the latter-- happiness. So like any smart engineering student, I used my same defective techniques to reach a conclusion, and after I was completely satisfied that I had made the right decision, I reversed my decision on the paper that I turned in to be graded. Guess what? My grades got much better-- yeah, almost perfect! I was not happy about the method I needed to pass the course, but, hey, it worked!

So much for justice, ethics, and common sense. Thank goodness, we engineers, scientists, and technologists don’t use “lawyer techniques” to solve our science and engineering problems… or do we? What about global warming? Where is the evidence? What about carbon footprints? Where is the evidence? What about evolution? Where is the evidence? What about coal and oil reserves? Where is the evidence? What about the 911 conspiracies? Where is the evidence? What about gun control? Where is the evidence? Try using your definition of common sense on these issues to reach a conclusion, regardless of the side you take. See? It doesn’t work.

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Comment by Tim Ganstrom on February 6, 2010 at 10:54pm
Oh, and good point Larry!!
Comment by Tim Ganstrom on February 6, 2010 at 10:52pm
Has anyone noticed how rare it is to find any people following what most of us claim to be 'Common Sense'? We call it 'Common Sense' yet what we usually mean by it is so often ignored or mis-applied that maybe that term has pretty much lost it's usefullness. (especially in government....) Just a thought.
As applied to engineering, we Americans are stubbernly holding onto the 'English' system of measurement, when 'common sense' would indicate there is plenty of incentive to standardize with the rest of world. England was able to switch over. Now, I do think we engineers should just start making our products based on the metric, and asking for more and more metric screws and holes from our suppliers and machine shops, until we are 'practically' a metric country anyhow. Then it will be from the bottom up, and not a 'forced on us' thing from the top down.

But just crazy late night thinking.... sort of related to engineering...ethics, justice, and common sense... (or illustrating the latter might not be so 'common.')
Comment by Larry D. Owens, Jr. on February 5, 2010 at 6:20pm
It is a grievous error and a futile endeavor, to attempt to relate the human based issue of common sense to the more cerebral root of law, religion, art, AND engineering. Both have a basic modus-operandi of getting to the next node point but with common sense the payoff is supposed to be immediate, or at least the basis for laying groundwork for some concrete thing to come in the future. (Like trying to live a moral life, one would chose a common sense approach to current decisions that would contribute maintaining a moral life).

But in law, religion, and other "culturally based" subject matter, their basis is predicated on a "construct basis". In other words, as LONG as some pre determined set of rules are followed, it is OK to "build" a house of cards as high as one can imagine, stopping only to make minor (or major) adjustments to the construct. This is why in law you are always stymied with comparing the "process" (common sense) to the outcome (a totally different outcome than imagined).

In engineering, the "process" is always the same, build on the previous KNOWN good foundation. As an example, a tall building is NOT designed from the ground up, but rather un-intuitively, from the top down. Only by KNOWING what the loads are ABOVE you are you able to design the levels BELOW you.

But in law there is NO requirement that the CURRENT premise SUPPORT any previous premise in law. As such, you can construct ANY legal creation you wish to. Even when you are confronted with concrete and REQUIRED structures, law (and the human condition upon which it is based) are always made with political will as opposed to common sense.

As a fine example of the law and its total ignoring of the human condition called common sense, look at the two defining documents of the United States, the Declaration of Independence and the Constitution of the United States. The former is a wish, a desire, yes, even a declaration of resolve. In it is found much of the motivation for why we wanted to pull away from our paternal ties with England. Grand words were compiled and written down for posterity. It became our “moral compass” for the existence of the United States. The Constitution on the other hand, became the LEGAL instrument upon which we as a country came to rely on for our governance.

But the absence of, and in fact, the limited documentation concerning the treatment of, not slaves, but people of indentured servitude, set the stage for many compromises thru the years leading up to the Civil War. All this time, the law referred to Negroes as chattel. Human property “totally without rights that any white man was bound to honor.” (from the Supreme Court ruling of Plessey v. Ferguson 1895)
Notice the divergent paths that morality and law are taking here. THAN, came the Civil War where 625,000 men lay down their lives for their own personal causes. From this human disaster and physical wreckage came the 13th, 14th, and 15th Amendments, addressing with specificity, black slavery, black citizenship, and black suffrage. Now, these premises were the law of the land, inscribed INTO the body of the Constitution, for all time.

But, did blacks enjoy the benefits of these newly inscribed rights? NO! Why? Not because there was now a legal CONSTRUCT to be guided by, not because it was the RIGHT thing to do, but rather because it was still the same political construct of the previous 88 years that men of a political system (the Supreme Court) were acting, dare I say, politically.

But the REALLY pernicious part of this scenario is the obvious fact that the Supreme Court was, is, and will always be seen (as given from the bowels of the Constitution) as a distinctly NON political body. Than WHY the 89 years of lost legal ground work running right up to Brown v. Board of Education, did Jim Crow laws reign as the Supreme Law of the Land?

Because laws are NOT made like engineering artifacts. Laws do NOT have to be constructed to SUPPORT any thing heavier than the political will of the people at the time. So,if you want to know the nature of a country’s people, look at how the treat their animals. If you want to know the nature of a peoples fidelity to a human construct (as in the law) look to how they accept the legal implication of those laws passed by the representatives.

We THOUGHT we were a country of laws, but in reality we have been a country of a Tyranny of the Majority. Why then, would you expect the law to reflect such a base premiss as common sense?

Darrow...for the Prosecution
Comment by Tim Ganstrom on February 5, 2010 at 2:17pm
To John: Great article. All systems that involve the decision making tendencies of humans, have the implicit possibility of straying from "Common-Sense, Logic, ethics, etc." precisely because humans themselves so easily stray from ethics and logic. [e.g. Tiger Woods, many NFL players, and even myself, if I'm honest about.] Therefore, a honest engineer 'ought' to admit the human element and seek as much help from his harshest critics in order to decrease the likelihood of a 'blind' spot causing undesirable results after much labor and capital is invested in his ideas. I'm still learning that the hard way sometimes as a young budding Engineering consultant.
As for your 'run-in' with a ideologue in Academia. Welcome to 'the club', I know the feeling. Your ethical paradigm says that a 'law' student ought to be judged on the strength and aptitude in their argumentation, not based on whether their conclusion happens to match some judge somewhere. I agree. But a relativist would say that the judge 'decrees' what is right vs. wrong, and therefore can never be wrong. (in the present tense anyhow.) Yes, it is a self-refuting position, but then guys like 'Tricky-Dick' (below) could care less about true logic. For them, 'winning' equals being 'right' even if some 'objective standard' would label their 'win' as wrong. Humans have struggled with this for millennia...

To Steve: maybe you should read up a bit from true constitutional scholars like Jay D. Wexler. [see “Kitzimller and the ‘Is It Science?’ Question,” 5 First Amendment Law Review 90, 92-93 (2006).] Have you studied epistemology and the philosophy of science? Or constitutional law? In my not-so-humble opinion, Kitz. vs. Dover was a prime example of what John is talking about above.

To Charles: Good point. For the most part, when large philosophical issues that have little consequence to the feelings of 'personal significance' of the Judges or Jurors themselves, then our Justice system is better than most across this planet, and better than most in history. [but that is like being the thinnest kid in fat-camp.] The only 'better system' would be one where there is more transparency in all branches and forms of government. (i.e. zero 'closed door/ back door' deals going on, in any branch of Government.)
Comment by Craig Simon on February 5, 2010 at 1:47pm
A couple of summers ago our church had a special course during the summer which was called the truth series, I strongly recommend it if you like the topic involved here. In one of the first videos of this series, the Professor (this was a video of a graduate level seminary course) put the number 1859 and said remember that year it has major significance in your lives. I, being a history buff, scratched my head a long time on that one - i could not come up with anything. A couple of videos later he states that 1859 was the year that Darwin published his origin of the species - still a so what right?
Later he states that Harvard got a new President and the new president needed to hire a new Dean of the Law School. One of the requirements he placed on this new Dean was that he believed Darwin's theory and the fact that things evolved including the law. That was the beginning of case law - prior to that it was about truth and justice but now it became more about the precedents that had been set by previous decisions.
At first this did not make for much change as the previous decisions were based on finding out about the truth, but over time the law began to migrate by relying more and more on decisions other judges had made, and not necessarily on the truth.
Being involved in a lot of legal issues with my business, most of which did not make sense to me, this made it all clear. How have attorneys come to power, by having knowledge that nobody else has. How can big law firms charge what they do, because they have a fatter library from which to draw from and more connections to make things happen. When it is not about truth and justice but based on some decision some judge made somewhere, everything becomes relative. The knowledge of the law became, in business terms, "a barrier to entry" much as the cost of auto safety crash tests were used as a barrier to entry to the US market for many years. Now it is rare that one goes to court without an attorney because the system is established by them and governed by them to a constantly changing set of rules that if you are not on top of will cost you the case. (Picking a lawyer who is not on top of it will also cost you the case.)
At some times it seems like a can't win scenario but some of us idealists have to keep trying. the other thing we need to do is find ways to take the system back and put lawyers in the position of being our servants rather than allowing them to leach off of the value we idealists, creators, producers, etc. create. We cannot give up on America as there is no other country that is close to what we want!
Comment by Stanley Unruh on February 5, 2010 at 1:23pm
Not sure what to make of your statement about evolution. I'm assuming based on the content of your post that you are on the side of facts here, since the evidence for evolution is overwhelming. Fossils, DNA, palentology, geology, cosmology, and micro biology all tell a consistant story about our history.
Comment by Charles Dohogne on February 5, 2010 at 12:58pm
I spent 25 years in court as a "expert" and, granted, it is 90% show, 10% fact. In almost every case, the right side won! I was on Grimshaw v Ford (the Pinto case), still studied by law students. Ford had "trickey Dick" Foxx, the best I have ever seen. He knew, and used, every trick in the book and came up with some new ones for this case. WE had facts on our side and won BIG TIME! The system is far from perfect, but works almost every time. Can you come up with a better system? Chuck Dohogne


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