I wondered when this post would come. Been following ES,' blog for several months, with comments and remarks. Why the world IS so weird is due to the complexities, contextual realities and foibles of us., and, possibly, the existential physics Hossenfelder writes about---which, by the way, may also be a contextual reality, unto itself. How long has this world been weird? That is hard to answer, without consideration of contextual reality.. I contend THAT has always existed, in some form or another, springing from the minds of conscious human (or human-like) beings. This is not metaphysical. It is both evolutionary and revolutionary. Without a grasp of reality, the notion of existential physics would be meaningless. Julian Jaynes' notion of a bicameral mind still fits our struggle with uncertainty.

In that sense, the bicameral mind never went away.
Cheers, Eric! You know who I am. Don't tell anyone yet...

"Politics makes strange bedfellows" runs a popular truism. As a Republic is a representative democracy, contrary interests can coincide in a single representation. The weirdness I find with this is how the contrary interests and differences in opinion are in the majority of cases the ones stressed as most representative of the Representative. Take the recent "Supplemental" which passed in the Senate. From an armchair's perspective it's got three parts: Two foreign aid parts, one to Eastern Europe and another to the Middle East, and one Southern border part. There are for practical purposes only two parties which determine the acceptability of its contents. One side wants more for the Southern border part and the other wants to keep it for the Eastern Europe part. There's no dispute, in spite of an outlier or two, on the Middle East part. With respect to this latter it is of great benefit, to my mind anyway, that participant Neuman has introduced his system of Contextual Reality. As the Undisputed furnishes the context for the Disputed, the Middle East part provides the context for the other two parts. And as Reality can best be defined, I think, as whatever gets in one's way, Contextual Reality is reality understood in its most comprehensive sense: where the context of one's optional behaviors gets in the way of any deliberate determination of their effects. Though not obvious, in my view this is a consistent account of the principle or basis of the system; and is supported by the claim above that "that has always existed" [emphasis not included]. So when the context becomes the reality, is its representation missing? Where's the Representative token which contains a dispute with the undisputed part? For is it not this that contains the greatest unrepresented constituency? It apparently must be gathered from the outer edges of each of the two parties. What's weird is how political representation with respect to legislation is garnered on precisely the most superficial differences in opinion rather than the very context which would get in the way and "hypocritize" any claim to generic representation. Now because the ICJ has already handed down a judgement of genocidal intent for the recipient of the Middle East part of the bill, such a third party representative could be called an "anti-genocide" party, in addition to possessing a strong anti-war sentiment. This party already exists in germ, as forces within one of the pair have brought down all three parts, and the goals of the as yet unnamed third party are for the moment realized.

So can one find it weird that the context of the reality of government behavior, --the government of a state which is arguably founded on the same crime which the third party seeks to prohibit, -- the "elephant in the room" so to speak, gets in the way of bureaucratic design by the subtle germination and birth of decisive opposition to what it can no longer ignore? How weird is it that generic commitments of cohabitating humans often called "moral" can become the basis of an unrepresented constituency's inclusion in the operations of the state? Or is it even more weird that the bicameral system has functioned precisely to exclude it? If Aristotle's correct in saying that the sole standard of judgement of a state's behavior is that of a human individual, then the exercise of one's optional etiology of heteronecropathy ought to be unconditionally precludable, and the Middle East part of the above cited Senate bill (the "Supplemental") ought to be taken out altogether, restorable only upon the intended recipient's conformity to international law and standards of civil human behavior. The party which has blocked it for the moment in the short term could therefore be commended by handing the funds for the Middle East part over to the Southern border part. That way both sides of the dispute are satisfied, and the elephant disappears. Any negative effects of the Southern border part can be reversed, but not the effects of genocidal action.

Such an effort would be, by definition, political in nature, where in this case both sides win, and the crime is prevented. This would make geopolitics a comedy which, as defined by its ending, sacrifices the pharmakon as the catalyst which brings the protagonists back together after separation. But a non-political legal effort can also be made, where both sides lose as having handed over weapons in foreknowledge of their criminal use. That play would end badly for the protagonists and is thus characterizable as a tragedy, where both sides lose and humanity wins, leaving the theatre with an increased understanding of the limits of ambition.

The legal route is therefore the better and "more serious" (spoudaios in Aristotle's Poetics) route than the political, and should only be overridden by the political when matters of urgency do not permit sufficient duration of a legal process. If no criminal liability can be demonstrated in the short term for state actors who transfer dangerous products under the reasonable supposition that they will be used in a crime, civil liability under the general law of torts could be demonstrated for the manufacturer and retailer of such products, insofar as the harm they are designed to cause is foreseeably misdirected upon civilian targets. This may be necessary inasmuch as international law regulates the behavior of states and not private businesses and corporations, so that civil prosecution based on tort liability for the manufacturer and distributor of dangerous products becomes a central feature of stable international relations, involving reasonable foreseeability of violations of international law.

The technical structure of liability determination here is a simple one: If a product is hazardous to the buyer or an adjacent party if used in the way intended it can not be protected against liability by its limitation to the stipulations of the contract, or its "privity of contract". This has a strong court precedent, and its evolution is readily expandable to international contexts. The precedent is first established in 1842 England in the case of Winterbottom v. Wright, where the driver of a carriage the construction of which was contracted by the Postmaster General and pulled by horses broke apart due to a latent defect, and damages were sought from the manufacturer. The court ruled however that the duty of care ascribed to the plaintiff was sufficient to insulate the defendant by the "privity of contract", stipulating that only the contracted parties can recover damages from any legal liability, citing that if this were not the case then the door would be open to an "infinity of actions"-- the key phrase, which would prevent sufficient production motivation to fulfill legitimate social goals furnished by market systems. Therefore injury to a third party by a defective product is not a "civil wrong" insofar as no failure to perform what is promised in a contract has occurred.

The question here is then whether or not arms manufacturers and distributors are protected by the privity of contract where used by a third party in a crime, which has in at least one case been judged to have occurred at the international level. The precedent for overriding contract-privity begins in Thomas and Wife v. Winchester (New York, 1852). Thomas purchased dandelion extract for his wife, the third party, which accidently contained a poison called "belladonna" and sustained injuries. The appellate court ruled that the retailer was liable for them on account of the fact that injury to a third party was inevitable, and no exercise of care on the part of the plaintiff could have prevented it.

In Devlin v. Smith (New York, 1882) a ledger was nailed to an upright in a construction project and collapsed causing injury to a third party. The product was defective because the upright was fastened by nails instead of ropes. The defendant was not protected by privity because the product was imminently dangerous as a probable result of its use and nothing indicated that to the plaintiff. The court's judgement made the distinction between the contract-privity precedent established in Winterbottom v. Wright and the exception to privity where a product is imminently dangerous as a result of its anticipated use as established in Thomas and Wife v. Winchester, bringing the judgement in Devlin firmly under the latter.

It is interesting to note that the 2005 law which insulates firearms manufacturers and retailers from legal liability for the harm caused by their products (the Protection of Lawful Commerce in Arms Act, or PLCAA) is defended on identical grounds to the Winterbottom decision, as precluding a "never ending series" (-the phrase comes from the CATO Institute)* of legal actions which threaten to erode II Amendment rights.

So can weapons manufacturers and their retailers be held liable for the harm caused by their products when transferred in foreknowledge of being used in criminal conduct? Or is it enough to stipulate some of these products, cluster bomb munitions, white phosphorous pellets, and weaponized drone aircraft amongst others, as imminently dangerous independent of the duty of care imposed on the consumer, so that it is brought under the principle established in Thomas and Wife? For if the PLCAA insulates these producers by privity of contract in international contexts, the potential for the crime of genocide to be stipulated as "acceptable use" becomes more probable, generating the weirdness-phenomenon where such use is perceived as generally unacceptable.

Many thanks to participant Neuman for his generous analysis.
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* Trevor Burrus, "Protecting Gun Manufacturers for Frivolous Lawsuits"; 9/11/2019.

The "weird," contradictory, ever changing forces in the universe, in emotions, in our thoughts, make up life's magic. That superlative sense of "awe" comes from nuance, tension, mystery and what often defies explanation. The beauty and tragedy expressed in a single aria is what makes opera compelling to me. And the angel on one shoulder, devil on the other, make for excellent drama. Is it "weird" to hold two disparate truths in one hand?