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Source: p 153 footnote, Thinking like a Lawyer, by Frederick Schauer

[1.] And in this article Russell took on a well-known fallacy that plagues legal as well as political argument. Lawyers all too often argue that if we cannot clearly distinguish one thing from another in all cases, then the distinction is worthless or incoherent.
They may argue, for example, that the distinction between navigable and non-navigable waters for purposes of determining whether there is admiralty jurisdiction is incoherent because some waters are navigable at high tide but not low or in rainy weather but not in dry. But that is an absurd argument, and Russell sought to demonstrate it by using the example of baldness. Although there are indeed some men about whom it would be hard to say whether they are bald or not, that does not mean that there is not a usable distinction between those who are clearly bald and those who are not. Edmund Burke made the same point about night and day, pointing out that the existence of dusk does not render the distinction between broad daylight and pitch darkness incoherent. But perhaps the best example comes from John Lowenstein, a baseball player for the Baltimore Orioles, who quipped that “they ought to move first base back a step and eliminate all the close plays.” Detroit Free Press, April 27, 1984, at F1.

What's the bolded fallacy named, as I desire to learn more about it?

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In the "real world", the relation "is indistinguishable from" is a non-transitive relation. This fallacy arises from assuming that it is a transitive relation.

Why do I say it is non-transitive in the "real world"? Because the theory of evolution implies that it is.

From the point of view of species, I am indistinguishable from my mother (we are both human). My mother is indistinguishable from her mother. Etc.. However, if you follow this chain back enough, you find a monkey, which is obviously not a human.

I would therefore say that this is a formal fallacy; i.e., logical fallacy. Unlike informal fallacy, I don't think it would be given a name.


EDIT Nov 2 Thanks for your additional comments.

Re-reading my answer, I admit that I haven’t been entirely clear - in fact, it’s a bit muddled. Although my comments about intransitivity are correct, they do not really hit at the heart of Russell’s view. In my subsequent comments, I have not clearly distinguished between Russell and the Lawyer, which is slightly ironic given the context, and this makes it difficult to understand.

First, I realise that I have not answered the question of naming this fallacy. I now think this is what is called a Naturalistic Fallacy - [3.] that which arises by inferring evaluative conclusions from purely factual premises in violation of fact-value distinction.

Here is what I mean by [3.]: My reading is that Russell is saying that the lawyer's conclusions are drawn by "evaluating" objective facts/data which are beyond the normal everyday meaning of the word distinction. So when I say "...that which arises by inferring evaluative conclusions from purely factual premises in violation of fact-value distinction", I am saying that the lawyer is evaluating facts of a scientific nature that do not relate directly to our everyday world and our everyday use of the word "distinction", and this is in violation of the fact-value distinction.

A fact-value distinction is the distinction between what “is” in a scientific sense, and what “is” by way of common consensus. The name “Naturalistic Fallacy” may relate to the role of natural language here.

Here’s my understanding of Russell’s objection :

The lawyer’s argument is using the word “distinction” in a way that is intended to encompass all aspects of objectivity and subjectivity - i.e fact-value distinction. The fallacy Russell is highlighting arises because in the real world the meaning of the word “distinction” does not encompass all possible aspects of objectivity. It is used in the context of our senses and in this limited context we are clearly able to distinguish things. Our senses have limits, and we understand this when we use the word “distinction”.

For example, if I buy a set of six spoons, then in the everyday-world, from a legal point of view, it is correct for me to say that one spoon is indistinguishable from another. However, I could get out a microscope and identify a small variation in the surface scratching, thus enabling me to distinguish between any two spoons. So the lawyer is saying that because I can make such a distinction, this renders all indistinctions worthless or incoherent - it undermines our claim to be able to clearly distinguish.

With a natural language such as English, the scope of our objectivity and subjectivity is limited by our ability to sense the world around us. We understand the meaning of words such as “distinction” in this limited context. This is the correct legal context, not the more restrictive and formal usage implied by the lawyer’s argument which uses fact-value distinction.

So ignore my previous answer and comments, and treat this edit as a new answer. If you have any further questions, I’m happy to try to answer them.

EDIT 3

See this excellent wiki page here for the fact-value distinction. It i critical here, and is related to the Naturalistic Fallacy, though some applications in social sciences have weakened this link.

Are you saying that contrary to Russell's argument, the lawyers infer too much from facts?

I'm saying something slightly different. That Russell argues the lawyers are using too many (scientific) facts to make their implication. These scientific facts are not relevant to everyday use of the word distinction and that using them to undermine it is fallacious because it is changing the everyday meaning of distinction.

What are evaluative conclusions?

Those conclusions drawn by evaluating the facts - in this case the irrelevant, scientific facts that undermine and change our meaning of distinction.

  • Thank you. 1. Would you please confirm if by '(non)transitive relation', you are referring to en.wikipedia.org/wiki/Intransitivity? Also, would you please explain how This fallacy arises from assuming that it is a transitive relation ? I don't understand the implication of your example, that 'indistinguishable as a species from' is an INtransitive relation? – Greek - Area 51 Proposal Nov 1 '14 at 7:03
  • @UpvoteLawArea51Proposal Hi. I've posted an edit. Have a look. – Nick R Nov 1 '14 at 19:42
  • +!. Thank you again. 4. I apologise if this bothers you, but does my Update (Nov 1 2014) affect your answer? Or did you answer it already? 5. Please enlarge on your last para? By 'contextual and not absolute', do you mean that a real world natural language (like English, French) is subjective? But even then, language can produce absolute truths (eg 'No smoking'), so what are the problems? 6. If 'In the real world I am unable to distinguish ... height[s that] differed by 0.1 millimetres', then does this contradict the sentence that Two real world objects ... some level of analysis? – Greek - Area 51 Proposal Nov 2 '14 at 8:07
  • @UpvoteLawArea51Proposal I've posted a second edit. Have a think and let me know if you are still unsure of my answer. I think I have been more precise in this formulation. Sorry for the previous confusion. – Nick R Nov 2 '14 at 20:00
  • @UpvoteLawArea51Proposal My comment was duplicated! So I have edited this one. Please see comment above. – Nick R Nov 2 '14 at 20:01
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Not every kind of intellectual mistake has a name. This is just such an example. I don't know any explicit label for this kind of error, but my guess would be that it's supposed to be a kind of quantification fallacy. That is, the person is supposed to be thinking:

Some instance of distinction D is unclear; therefore, every instance of distinction D is unclear.

That inference is obviously fallacious. Consider the parallel:

Some plants are trees; therefore, every plant is a tree.

  • 1
    "Overgeneralisation" then? – AndrewC Aug 22 '14 at 18:13
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    Is that a name for a fallacy? I don't know. Focusing on the names of fallacies seems counterproductive to me. The important skill is being able to see the logical structure and come up with counterexamples. – shane Aug 23 '14 at 17:54
  • You're right of course. Indeed, I already upvoted your answer yesterday. – AndrewC Aug 23 '14 at 18:15
  • Will you please to respond in your answer, and not as a comment? – Greek - Area 51 Proposal Nov 1 '14 at 7:07
  • Can you please explain how your quote matches the order in the quote? The quote states: if we cannot clearly distinguish one thing from another in all cases, then the distinction is worthless or incoherent. So the quote proceeds from ALL cases to one case, no? – Greek - Area 51 Proposal Jan 13 '16 at 22:21
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What if a distinction can be made in some or even most cases? If those cases hold, then, of course, the distinction would be valid.

Example: People's faces cannot always be distinguished, e.g. in very low light conditions. That doesn't mean we cannot ever distinguish people's faces.

What do you call this? AndrewC's "overgeneralization" works.

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It seems to be a matter of simple absence of degree -- black and white thinking where only perfection signifies.

If something cannot be perfectly distinguished, then the law would be unfair to those where it is real but not distinguished. We should therefore just never consider it, lest we be unfair occasionally. Only perfectly fair laws should exist.

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