Monday, 30 April 2012

Upon Further Review of Hart v. Electronic Arts: New Article Proposes Partial Recovery for Partially Transformative Use

Back in September 2011, the U.S. District Court for the District of New Jersey ruled in Hart v. Electronic Arts, 808 F. Supp. 2d 757 (D.N.J. 2011) that videogame publisher Electronic Arts may use college athletes' likenesses in its videogames because "there are sufficient elements of [Electronic Arts'] own expression ... that justify the conclusion that its use of the image is ... entitled to First Amendment protection." (Previously blogged about on Sports Law Blog here).

To many, the district court's decision in Hart was controversial, not only because it subordinates the rights of college athletes, but also because it expands what courts have traditionally defined as "transformative use" of one's likeness. For example, the court in Hart concluded that Electronic Arts' inclusion of“virtual stadiums, athletes, coaches, fans, sound effects, music andcommentary” makes use of player likenesses in NCAA Football "transformative." Nevertheless, the U.S. Court of Appeals for the Ninth Circuit had previously held in Hilton v. Hallmark Cards that First Amendmentprotection applies only where “a product containing a celebrity’s likeness isso transformed that it has become primarily the defendant’s own expressionrather than the celebrity’s likeness.”

After several months of contemplating the district court's ruling in Hart v. Electronic Arts, I have released a draft of my upcoming Florida Law Review article, entitled "Closing the Free Speech Loophole: The Case for Protecting College Athletes' Likenesses in Commercial Videogames." In this article I argue that the partial transformation to a person's likeness via digital format -- whether it be by adding additional background elements, or by changing one's jersey number, height or hairdo -- should not be seen as a complete bar to recovery under right of publicity law.

Instead, I argue that a partial transformation to one's likeness should be deemed as a partially mitigating factor that may reduce the infringer's liability, but would not reduce it to zero. Thus, under this alternative assessment, college athletes whose likenesses appear in college football videogames would be entitled to partial recovery.

For those interested in further discussion of college athletes' publicity rights in commercial videogames and the idea of partial recovery for partial transformative use of one's likeness, a full copy of my upcoming law review article is available here.

Excellent opportunity for undergrads - 3FF

The War For Children's Minds

I was billed as the author of The War For Children's Minds on BBC1 Big Questions - this coming Sunday (see previous post). Hope a few more people will now read it...

'...this volume has a hugely significant contribution to make. It is also highly readable, and provides a useful pocket guide to current philosophical thinking - a sort of religious Bill Bryson.' - Church Times

'The War for Children's Minds is a brilliantly clear and convincingly argued defence of liberalism in moral education. Stephen Law examines and demolishes all the arguments in favour of authoritarian ways of teaching, and shows that in spite of the insistence of popular commentators from the religious right, a liberal and rational examination and discussion of moral questions does not lead to relativism and the decay of ethical behaviour, but can in fact be the best defence against them. This book won't be read by popular journalists: they will attack it without reading it. But it should be read by every teacher, every parent, and every politician. What's more, it should form the subject for discussion in every church, synagogue, mosque, and religious youth group. It's one of the most engaging as well as one of the most necessary books that I've ever read in the field of moral education.'  - Philip Pullman 

'Progressives schools, they say, promote the wishy-washy, anything goes mentality that is the source of our social malaise. In The War for Children’s Minds, Stephen Law does a splendid and philosophically thrilling job of cutting that argument to shreds.' - The Guardian

'...a succinct and eloquent defence of liberalism.' - The Economist

'A stirring defence of liberal values.' - Times Educational Supplement

'A passionate philosophical defence of a liberal approach to parenting and education.' - The Guardian

'This defence of reason should be obligatory reading, not just in schools, but in parliament and the press. ' - Sunday Herald

'[The] debate about children’s education…seems to be dominated by the other side. It’s a side that believes Liberal is a dirty word, that the Enlightenment did more harm than good and that children should be taught in a much more formal way. In his book [Law] begs to differ. He suggests that children should be allowed to examine and discuss religious and moral issues in a liberal, philosophically informed and rational way.' - The Oxford Times


"Dear Colleague" Letter Regarding PASPA

On April 26, 2012, U.S. Congressmen Frank Pallone and Frank Lobiondo (both from New Jersey) released a "Dear Colleague" letter explaining the impetus for the two bills they recently introduced pertaining to PASPA, the 1992 federal statute prohibiting state-sponsored sports gambling in all jurisdictions except Nevada, Montana, Delaware, and Oregon. An excerpt from the letter is below:

"We have developed two separate, but equally effective, pathways toward the same goal of bringing sports gaming and the economic benefits it yields to the State of New Jersey. The New Jersey Betting and Equal Treatment Act of 2012 (NJ BET Act), H.R. 3081, provides New Jersey with an exemption to the federal prohibition [in PASPA]. It allows state law in New Jersey to determine how sports betting will be regulated within the state. The Sports Gaming Opportunity Act of 2012, H.R. 3797, opens a window in which states can enact alaw providing for sports gambling within their state until January 1, 2016,after which the federal prohibition [in PASPA] against states allowing sportsgambling would go back into place."

The full letter can be found here.

BBC1 Big Questions again

I will be on BBC1 Big Questions programme again next Sunday 10am (May 6th). This one was prerecorded yesterday. The whole programme was devoted to children and religion.

Tuesday, 24 April 2012

Minnesota Passes Bill to Allow Beer and Alcohol Sales at College Sporting Events

For those who are interested in the debate over whether to allow beer and alcohol sales at college sporting events, the State of Minnesota recently passed a bill that would allow for the sale of alcohol in suites for premium ticket holders and in a beer garden for the general public. According to the Minneapolis Star Tribune, the new bill is expected to bring the State of Minnesota $1.5-$2.0 Million in annual revenue.

If Minnesota Governor Mark Dayton signs this new bill into law, Minnesota will join Iowa, West Virginia and a growing number of other states in allowing beer and alcohol sales at their college sporting events. This is at the same time that many colleges around the country claim there is a need to crack down on undergraduate students' alcohol consumption.

In a 2010 law review article, David Rosenthal (a former student of mine) and I discuss the inconsistent messages that college athletics send about alcohol use. Does it make sense for the University of Minnesota to arrest underage students for drinking beer on Friday nights, and then to sell beer in its football stadium on Saturday afternoons?

Also, when colleges profit from the sale of beer at their sporting events, are they implicitly using their 'student-athletes' to help peddle the product? If so, can we truly call these college athletes amateurs?

Sunday, 22 April 2012

Sports Venture Capital

I attended this week the first meeting of a group focused on sports venture capital. The attendees included representatives from the major sports leagues, venture capitalists and a number of initial stage companies with some technology or other services applicable to the sports industry.

MLB and NFL digital media execs gave a fascinating presentation on how those leagues use digital media to interact with and gain new fans, and what they look for when considering their own investments and other partnerships with sports technology companies.

The major sports leagues clearly see potential financial benefits from investing in initial stage technology companies, at least in part because social media is integral to their business models, as well as owning their own content. With the importance of social media for teams and leagues in heightening the fan experience (and increasing revenues), the proliferation of sports start-ups focused on technology and social media is likely to continue and teams and leagues are likely to continue to invest their own funds in these ventures. Technology companies like Apple and Google have been rumored to be bidders for sports media rights such as the English Premier League soccer.

The convergence of technology and sports, and start-up ventures, particularly social media companies, is a trend to watch.

Liverpool talk May 17th

Merseyside Skeptics Society
Skeptics in the Pub: Stephen Law
Believing Bullshit: How Not to Get Sucked into an Intellectual Black Hole
by Stephen Law
When: Thursday, May 17th, 2012 8.00 – 11.00 PM
Where: The Head of Steam, 7 Lime Street, Liverpool
Info here.

Wacky belief systems abound.
Members of the Heavens Gate suicide cult believed they were taking a ride to heaven on board a UFO. Muslim suicide bombers expect to be greeted after death by 72 virgins. And many fundamentalist Christians insist the entire universe is just 6,000 years old. Of course its not only cults and religions that promote bizarre beliefs significant numbers of people believe that aliens built the pyramids. How do such preposterous views succeed in entrenching themselves in the minds of sane, intelligent, educated people and turn them into the willing slaves of claptrap?

Believing Bullshit is a witty and insightful critique that will help immunise readers against the wiles of cultists, religious and political zealots, conspiracy theorists, and various other nut-cases by clearly setting out the tricks of the trade by which such insidious belief systems are created and sustained.

Friday, 20 April 2012


(Published in Faith and Philosophy 2011. Volume 28, Issue 2, April 2011. Stephen Law. Pages 129-151)
Stephen Law


The vast majority of Biblical historians believe there is evidence sufficient to place Jesus’ existence beyond reasonable doubt. Many believe the New Testament documents alone suffice firmly to establish Jesus as an actual, historical figure. I question these views. In particular, I argue (i) that the three most popular criteria by which various non-miraculous New Testament claims made about Jesus are supposedly corroborated are not sufficient, either singly or jointly, to place his existence beyond reasonable doubt, and (ii) that a prima facie plausible principle concerning how evidence should be assessed – a principle I call the contamination principle – entails that, given the large proportion of uncorroborated miracle claims made about Jesus in the New Testament documents, we should, in the absence of independent evidence for an historical Jesus, remain sceptical about his existence.


Historians regularly distinguish two kinds of claims about Jesus:

(i)    claims concerning Jesus’ existence and the non-miraculous events in his life, such as his teaching and crucifixion.
(ii)    claims concerning Jesus’ divinity and the miraculous – such as walking on water, raising the dead and, most notably, the resurrection.

Philosophical reflection has made contributions regarding how we assess evidence for the latter – Hume’s writing on miracles being perhaps the most noteworthy. Here, I explain how philosophical reflection might also make an important contribution regarding how we assess evidence for the former.

The focus of this paper is solely on what history, as a discipline, is able to reveal. Perhaps historical investigation is not the only way in which we might come to know whether or not Jesus existed. Alvin Plantinga suggests that the truth of scripture can be known non-inferentially, by the operation of a sensus divinitatis.  Here we are concerned only with what might be established by the evidence. The key question I address is: is it true that, as most Biblical historians believe, the available historical evidence places Jesus’ existence beyond reasonable doubt? In particular, can we firmly establish Jesus’ existence just by appeal to the New Testament documents?

Sources of evidence

What constitutes the pool of evidence on which we might draw in making a case for an historical Jesus? The main source is the New Testament, and more specifically:

(i) The Gospels, some written within a few (perhaps one or two) decades of Jesus’ death (though probably not by first-hand witnesses).

(ii) The writings of Paul – written perhaps within a decade or two of Jesus’ life. Paul may have known some of those who knew Jesus personally. Paul claims to have received the Gospel not from any human source or teaching but by revelation from the miraculously risen Christ (Galatians 1:11-12, 15-16).

In addition to the textual evidence provided by the New Testament, we possess some non-canonical gospels, and also a handful of later, non-Christian references to Jesus: most notably Tacitus, who writes about the Christians persecuted by Nero, who were named after their leader Christus who suffered the “extreme penalty” under Tiberius , and Josephus, who makes a brief reference to the crucifixion of Jesus . However, it is controversial whether these later references are genuinely independent of Christian sources (Tacitus may only be reporting the existence of Christians and what they believed, and Josephus may be relying on Christian reports of what occurred ). There is also debate over the extent to which the Josephus text has been tampered with by later Christians. 

The Consensus View

Historians disagree over the extent to which claims about Jesus’ miraculous nature – and, in particular, his resurrection – are supported by the historical evidence. However, when we turn to the question of whether there was an historical Jesus, we find a clear consensus emerges. The vast majority believe that Jesus’ existence and crucifixion, at least, are firmly established (one rare exception being Robert M. Price) .

Of course, it’s widely acknowledged that the evidence for Jesus’ existence might seem somewhat limited compared to, say, the evidence we have for the existence of individuals from more recent history. But, when it comes to figures from ancient history, the evidence is often rather restricted. That doesn’t prevent historians building a good case for their existence.

In fact, it is often said there is as much evidence for an historical Jesus as there is for the existence of a great many other historical figures whose existence is never seriously doubted. In A Marginal Jew – Rethinking The Historical Jesus, for example, John Meier notes that what we know about Alexander the Great could fit on a few sheets of paper, yet no one doubts that Alexander existed.  Greco-Roman historian Michael Grant argues that

if we apply to the New Testament, as we should, the same sort of criteria as we should apply to other ancient writings containing historical material, we can no more reject Jesus’ existence than we can reject the existence of a mass of pagan personages whose reality as historical figures is never questioned.

Biblical historian E. P. Sanders writes:

There are no substantial doubts about the general course of Jesus’ life: when and where he lived, approximately when and where he died, and the sort of thing that he did during his public activity.

According to Luke Johnson, a New Testament scholar at Emory University,

Even the most critical historian can confidently assert that a Jew named Jesus worked as a teacher and wonder-worker in Palestine during the reign of Tiberius, was executed by crucifixion under the prefect Pontius Pilate and continued to have followers after his death.
My concern here is with the claim that there is, indeed, historical evidence sufficient firmly to establish the existence of Jesus. Note that while I question whether there is, in fact, such historical evidence, I do not argue that we are justified in supposing that Jesus is an entirely mythical figure (I remain no less sceptical about that claim).


One difference between the historical claims made about Jesus and those made about other historical characters such as Alexander the Great is the large number of supernatural miracles in which Jesus is alleged to have been involved. By supernatural miracles I mean miracles involving a suspension of the laws or regularities otherwise governing that natural world (henceforth, I shall simply refer to such events as “miracles”). Walking on water, bringing dead people back to life and turning water into wine all appear to be miracles of this sort.

This is not to say that miracles were not also associated with other figures whose existence is not seriously questioned – they were. Attributing miracles to major figures, including even sporting heroes, was not uncommon in the ancient world. However, when we look at the textual evidence for an historical Jesus provided by the New Testament, we find an abundance of miracle claims. Somewhere in the region of thirty-five miracles are attributed to Jesus in the New Testament. These miracles constitute a significant part of the narrative. It is estimated that the episodes reported by the Gospels (other than the nativity)  occur in only the last three years of Jesus’ life, and that together they comprise just a few weeks or months. The supposed occurrence of thirty-five or so miracles within such a relatively short period of time is striking. Nor are these miracles merely incidental to the main narrative. The pivotal episode – Jesus’ resurrection – is a miracle.

Evidence for the miraculous

I begin by focusing on evidence for the miraculous (the relevance of this will become apparent later). It appears that, as a rule, in order for evidence to justify the claim that something miraculous has occurred, the evidence needs to be of a much higher standard than that required to justify more mundane beliefs. Here is a simple illustration of this point.

The Ted and Sarah case

Suppose I have two close friends, Ted and Sarah, whom I know to be generally sane and trustworthy individuals. Suppose that Ted and Sarah now tell me that someone called Bert paid them an unexpected visit in their home last night, and stayed a couple of hours drinking tea with them. They recount various details, such as topics of conversation, what Bert was wearing, and so on. Other things being equal, it is fairly reasonable for me to believe, solely on the basis of their testimony, that such a visit occurred.

But now suppose Ted and Sarah also tell me that shortly before leaving, Bert flew around their sitting room by flapping his arms, died, came back to life again, and finished by temporarily transforming their sofa into a donkey. Ted and Sarah appear to say these things in all sincerity. In fact, they seem genuinely disturbed by what they believe they witnessed. They continue to make these claims about Bert even after several weeks of cross-examination by me.

Am I justified in believing that Ted and Sarah witnessed miracles? Surely not. The fact that Ted and Sarah claim these things happened is not nearly good enough evidence. Their testimony presents me with some evidence that miracles were performed in their living room; but, given the extraordinary nature of their claims, I am not yet justified in believing them.

Notice, incidentally, that even if I am unable to construct a plausible explanation for why these otherwise highly trustworthy individuals would make such extraordinary claims – it’s implausible, for example, that Ted and Sarah are deliberate hoaxers (for this does not fit at all with what I otherwise know about them), or are the unwitting victims of an elaborate hoax (why would someone go to such extraordinary lengths to pull this trick?) – that would still not lend their testimony much additional credibility. Ceteris paribus, when dealing with such extraordinary reports – whether they be about alien abductions or supernatural visitations – the fact that it remains blankly mysterious why such reports would be made if they were not true does not provide us with very much additional reason to suppose that they are true.

Consideration of the Ted and Sarah case suggests something like the following moral:

P1 Where a claim’s justification derives solely from evidence, extraordinary claims (e.g. concerning supernatural miracles) require extraordinary evidence. In the absence of extraordinary evidence there is good reason to be sceptical about those claims.

The phrase “extraordinary claims require extraordinary evidence” is associated particularly with the scientist Carl Sagan . By “extraordinary evidence” Sagan means, of course, extraordinarily good evidence – evidence much stronger than that required to justify rather more mundane claims. The phrase “extraordinary claims” is admittedly somewhat vague. A claim need not involve a supernatural element to qualify as “extraordinary” in the sense intended here (the claims that I built a time machine over the weekend, or was abducted by aliens, involve no supernatural element, but would also count as “extraordinary”). It suffices, for our purposes, to say that whatever “extraordinary” means here, the claim that a supernatural miracle has occurred qualifies.

Some theists  (though of course by no means all) have challenged the application of Sagan’s principle to religious miracles, maintaining that which claims qualify as “extraordinary” depends on our presuppositions. Suppose we begin to examine the historical evidence having presupposed that there is no, or is unlikely to be a, God. Then of course Jesus’ miracles will strike us as highly unlikely events requiring exceptionally good evidence before we might reasonably suppose them to have occurred. But what if we approach the Jesus miracles from the point of view of theism? Then that such miraculous events should be a part of history is not, one might argue, particularly surprising. But then we are not justified in raising the evidential bar with respect to such claims. So theists may, after all, be justified in accepting such events occurred solely on the basis of a limited amount of testimony, just as they would be the occurrence of other unusual, but non-supernatural, events. The application of Sagan’s principle that “extraordinary claims require extraordinary evidence” to the Jesus miracles simply presupposes, prior to any examination of the evidence, that theism is not, or is unlikely to be, true. We might call this response to Sagan’s principle the Presuppositions Move.

That there is something awry with the Presuppositions Move, at least as it stands, is strongly suggested by the fact that it appears to license those of us who believe in Big Foot, psychic powers, the activities of fairies, etc. to adopt the same strategy – e.g. we may insist that we can quite reasonable accept, solely on the basis of Mary and John’s testimony, that fairies danced at the bottom of their garden last night, just so long as we presuppose, prior to any examination of the evidence, that fairies exist. Those making the Presuppositions Move with respect to religious miracles may be prepared to accept this consequence, but I suspect the majority of impartial observers will find it a lot to swallow – and indeed will continue to consider those who accept testimony of dancing fairies to be excessively credulous whether those believers happen to hold fairy-istic presuppositions or not.

I suspect at least part of what has gone wrong here is that, when it comes to assessing evidence for the Jesus miracles and other supernatural events, we do so having now acquired a great deal of evidence about the unreliability of testimony supposedly supporting such claims. We know – or at least ought to know by now – that such testimony is very often very unreliable (sightings of ghosts, fairies, and of course, even religious experiences and miracles, are constantly being debunked, exposed as fraudulent, etc.). But then, armed with this further knowledge about the general unreliability of this kind of testimony, even if we do happen to approach such testimony with theistic or fairy-istic presuppositions, surely we should still raise the evidential bar much higher for eye-witness reports of religious miracles or fairies than we do for more mundane claims.
So, my suggestion is that P1 is, prima facie, a fairly plausible principle – a principle that is applicable to the testimony concerning the miracles of Jesus. Note that P1 at least allows for the possibility that we might reasonably suppose a miracle has happened. Of course, I do not claim to have provided anything like proof of P1. But it does appear fairly accurately to reflect one of the ways in which we assess evidence. We do, rightly, set the evidential bar much higher for extraordinary claims than we do for more mundane claims.

If we turn to the miracle claims made in the New Testament concerning Jesus – including the claim that he was resurrected three days after his death – P1 suggests the evidence required to justify such claims would need to be much stronger than that required to justify more mundane claims about ancient history, such as that Caesar crossed the Rubicon. That we possess evidence sufficient to justify belief in even one of the many supernatural miracles associated with Jesus is clearly questionable. There is no consensus among historians about that.

Of course, we should acknowledge there are differences between the historical evidence for the miracles of Jesus and the evidence provided by Ted and Sarah that miracles were performed in their sitting room. For example, we have only two individuals testifying to Bert’s miracles, whereas we have all four Gospels, plus Paul, testifying to the miracles of Jesus. However, even if we learn that Ted and Sarah were joined by three other witnesses whose testimony is then added to their own, surely that would still not raise the credibility of their collective testimony by very much.

Also note that the evidence supplied by Ted and Sarah is, in certain respects, significantly better than the evidence supplied by the New Testament. For we are dealing directly with the eye-witnesses themselves immediately after the alleged events, rather than having to rely on second- or third-hand reports produced two millenia ago, perhaps decades after the events in question.

The contamination principle

I shall now argue for a second principle.

Let’s return to Ted and Sarah. If they tell me a man called Bert paid them an unexpected visit in their home last night, I have every reason to believe them. But if they tell me that Bert flew around the room by flapping his arms before dying, coming back to life and turning their sofa into a donkey, well then not only I am not justified, solely on the basis of their testimony, that these amazing things happened, I can no longer be at all confident that any such person as Bert exists.

None of this is to say we possess good grounds for supposing Bert doesn’t exist. It’s just that we are not yet justified in claiming that he does.

Of course, if we are given video footage showing Ted and Sarah welcoming someone into their house at just the time Bert supposedly visited, well we now have much better grounds for supposing that Bert is real. But in the absence of such good, independent evidence, we are not yet justified in supposing there is any such person.

These observations suggest something like the following principle:

P2 Where testimony/documents weave together a narrative that combines mundane claims with a significant proportion of extraordinary claims, and there is good reason to be sceptical about those extraordinary claims, then there is good reason to be sceptical about the mundane claims, at least until we possess good independent evidence of their truth.

We might call this the contamination principle – the thought being that the dubious character of the several extraordinary parts of a narrative ends up contaminating the more pedestrian parts, rendering them dubious too.

Why does this contamination take place? Because once we know that a powerful, false-testimony-producing mechanism (or combination of mechanisms) may well have produced a significant chunk of a narrative (e.g. the miraculous parts), we can no longer be confident that the same mechanism is not responsible for what remains.

Ted and Sarah’s miracle reports, if false, will be the impressive result of a powerful, false-testimony-producing mechanism. We may not know what that mechanism is (hypnotism, L.S.D., or a powerful desire to get themselves on daytime TV – who knows?). But, whatever the mechanism is, it could, presumably, quite easily also be the source of the remainder of their narrative. We can’t, at this stage, be confident that it isn’t.

Principle P2 also has some prima facie plausibility. It certainly explains why we are not justified in taking Ted and Sarah’s word for it that Bert exists. However, I don’t doubt that P2 will be challenged, and I will examine some likely objections later.

The bracketing strategy

Note that if P2, or something like it, is correct, then it rules out a certain approach to assessing evidence for both the extraordinary and non-extraordinary claims concerning Jesus, an approach we might call “bracketing”.

To make a case for the truth of the non-miraculous parts of Ted and Sarah’s testimony, I certainly wouldn’t be justified in saying: “Let’s set to one side, for the moment, Ted and Sarah’s claim that Bert performed miracles. We still have the testimony of these two otherwise sane and trustworthy individuals that someone called Bert drank tea with them. Under other circumstances, we would be justified in taking their word for this. So we’re justified in taking their word for it here, too.”

Intuitively, this would be a faulty inference. We’re not yet justified in supposing Bert exists. The fact that a large chunk of Ted and Sarah’s testimony involves him performing supernatural miracles does not just slightly reduce the credibility of the rest of the testimony about him – it almost entirely undermines it.

It would be particularly foolish of us to attempt to construct a two-stage case for the miraculous parts of Ted and Sarah’s testimony by (i) bracketing the miraculous parts to establish the truth of the non-miraculous parts, and then (ii) using these supposedly now “firmly established facts” as a platform from which to argue for the truth of the miraculous parts.

In the same way, we cannot legitimately bracket the miraculous parts of the New Testament, and then insist that, as the remaining textual evidence for Jesus’ existence is at least as good as the textual evidence we have for other ancient figures whose existence is beyond reasonable doubt (e.g. Socrates), Jesus’ existence must also beyond reasonable doubt.

It would also be foolish to try to construct a two part case for Jesus’ miraculous resurrection by (i) bracketing the miraculous parts of the Gospel narrative and using what remains to build a case for the truth of certain non-miraculous claims (about Jesus’ crucifixion, the empty tomb, and so on), and then (ii) using these supposedly now “firmly established facts” to argue that Jesus’ miraculous resurrection is what best explains them (yet several apologetic works – e.g. Frank Morrison’s Who Moved The Stone?  – appear implicitly to rely on this strategy).
A sceptical argument

Our two prima facie plausible principles – P1 and P2 – combine with certain plausible empirical claims to deliver a conclusion very few Biblical scholars are willing to accept.

Let me stress at the outset that I don’t endorse the following argument. I present it, not because I’m convinced it is cogent, but because I believe it has some prima facie plausibility, and because it is an argument any historian who believes the available evidence places Jesus’ existence beyond reasonable doubt needs to refute.

1. (P1) Where a claim’s justification derives solely from evidence, extraordinary claims (e.g. concerning supernatural miracles) require extraordinary evidence. In the absence of extraordinary evidence there is good reason to be sceptical about those claims.
2. There is no extraordinary evidence for any of the extraordinary claims concerning supernatural miracles made in the New Testament documents.

3. Therefore (from 1 and 2), there's good reason to be sceptical about those extraordinary claims.

4. (P2) Where testimony/documents weave together a narrative that combines mundane claims with a significant proportion of extraordinary claims, and there is good reason to be sceptical about those extraordinary claims, then there is good reason to be sceptical about the mundane claims, at least until we possess good independent evidence of their truth.

5. The New Testament documents weave together a narrative about Jesus that combines mundane claims with a significant proportion of extraordinary claims.

6. There is no good independent evidence for even the mundane claims about Jesus (such as that he existed)

7. Therefore (from 3, 4, 5, and 6), there's good reason to be sceptical about whether Jesus existed.

Notice that this argument is presented in the context of a discussion of what it is or is not reasonable to believe on the basis of the historical evidence.  The argument combines P1 and P2 with three further premises - 2, 5 and 6 - concerning the character of the available evidence. These are the premises on which historians and Biblical scholars are better qualified than I to comment.

Clearly, many historians also accept something like 2 and 5. A significant number remain sceptical about the miracle claims made in the New Testament, and so they, at least, are clearly not much tempted by the Presuppositions Move outlined above (which involved the suggestion that, for those coming to the evidence with Theistic presuppositions, the New Testament miracle claims need not, in the relevant sense, qualify as “extraordinary”). Michael Grant, for example, says: “according to the cold standard of humdrum fact, the standard to which the student of history is obliged to limit himself, these nature-reversing miracles did not happen.” . What of premise 6? Well, it is at least controversial among historians to what extent the evidence supplied by Josephus and Tacitus, etc. provides good, independent evidence for the existence of Jesus. Those texts provide some non-miracle-involving evidence, of course, but whether it can rightly be considered good, genuinely independent evidence remains widely debated among the experts.

So, our empirical premises – 2, 5 and 6, – have some prima facie plausibility. I suggest 2 and 5 have a great deal of plausibility, and 6 is at the very least debatable.

My suspicion is that a significant number of Biblical scholars and historians (though of course by no means all) would accept something like all three empirical premises. If that is so, it then raises an intriguing question: why, then, is there such a powerful consensus that those who take a sceptical attitude towards Jesus’ existence are being unreasonable?

Perhaps the most obvious answer to this question would be: while many Biblical historians accept that the empirical premises have at least a fair degree of plausibility, and most would also accept something like P1, few would accept P2.

Assessing P2

Are there cogent objections to P2? Presumably, some sort of contamination principle is correct, for clearly, in the Ted and Sarah Case, the dubious character of the extraordinary, uncorroborated parts of their testimony does contaminate the non-extraordinary parts.

However, as an attempt to capture the degree to which testimony concerning the extraordinary can end up undermining the credibility of the more mundane parts of a narrative, perhaps P2 goes too far, laying down a condition that is too strong?

After all, Alexander the Great was also said to have been involved in miracles. Plutarch records that Alexander was miraculously guided across the desert by a flock of ravens that waited when Alexander’s army fell behind.  Should the presence of such extraordinary claims lead us to condemn everything Plutarch’s has to say about Alexander as unreliable? Obviously not. As Michael Grant notes:

That there was a growth of legend round Jesus cannot be denied, and it arose very quickly. But there had also been a rapid growth of legend around pagan figures like Alexander the Great; and yet nobody regards him as wholly mythical and fictitious.

However, these observations should not lead us to abandon P2. For P2 does not require we be sceptical Alexander’s existence. The miraculous claims made by Plutarch about Alexander constitute only a small part of his narrative. Moreover, regarding the miracle of the ravens, it’s not even clear we are dealing with a supernatural miracle, rather than some honestly misinterpreted natural phenomenon.  Further, and still more importantly, there’s good, independent evidence that Alexander existed and did many of the things Plutarch reports (including archeological evidence of the dynasties left in his military wake).

So the inclusion of a couple of miraculous elements in some of the evidence we have about Alexander is not much of a threat to our knowledge about him – and P2 does not suggest otherwise. The same is true when it comes to other figures about whom supernatural claims were made, such as Socrates (about whom we have non-miracle involving testimony provided by Plato, Xenophon, etc.) and Julius Caesar (about whom we have both non-miracle-involving testimony and other historical evidence). The problem with the textual evidence for Jesus’ existence is that most of the details we have about him come solely from documents in which the miraculous constitutes a significant part of what is said about Jesus, where many of these miracles (walking on water, etc.) are unlikely to be merely misinterpreted natural phenomena, and where it is at least questionable whether we possess any good, independent non-miracle-involving evidence of his existence.

An objection

Here is a different suggestion as to how P2 might be challenged. Suppose we engage in a survey of similar figures about whom a great many miracle claims are made. We discover that, in the vast majority of cases, when we peel back the onionskin layers of mythology, there’s an actual historical person at the core. If that was established, then we might generalize, concluding that there’s probably an historical figure lying at the heart of the Jesus mythology too. The fact that many miracle claims are made about Jesus shouldn’t lead us to question his existence.

But this begs the question - would such a survey reveal that such narratives almost always have a real person at their core?

Clearly, historical figures do sometimes rapidly become the focus of many miracle claims. Haile Selassie, Emperor of Ethiopia from 1930-1974, is an historical figure around whom an astonishingly rich miracle-involving mythology developed even within his own lifetime. If such a mythology could quickly build up around Selassie, then presumably it could also have built up around an historical Jesus.

However, when we peel back the layers of mythology surrounding other figures, such as Jon Frum, figurehead of the cargo-cult religions that developed in the 1930’s on the islands of Tanna and Vanuatu, it is not clear that there is any historical core.  Not only are the various amazing claims about Frum not true, it appears quite likely there was never any such person. Other mythic narratives, e.g. concerning Hercules, also appear to have no historical figure at their core. It is not obviously a rule that mythical narratives into which are woven a large proportion of miracle claims are, in most cases, built around real people rather than mythic characters. So, while such a case for rejecting P2 might perhaps be developed, the prospects do not seem, at this point, particularly promising.

The decontamination objection

Another challenge to P2 would be to insist that while many unsubstantiated and extraordinary claims within a narrative might contaminate even the mundane parts of the narrative, rendering them dubious too, independent confirmation of several mundane parts might serve, as it were, to decontaminate the remaining mundane parts.

So, for example, while the New Testament narrative combines both extraordinary and mundane claims about Jesus, it also includes other mundane claims about for which we do have good independent evidence. For example, the narrative makes claims about the existence and position of Pontius Pilate, claims for which there is independent evidence. If enough of these mundane claims were independently confirmed, wouldn’t that effectively decontaminate the testimony regarding at least the mundane claims about Jesus – such as that he existed, visited certain places, said certain things, was condemned to death by Pilate, and so on?

I don’t believe so. Suppose that in the Ted and Sarah case, Ted and Sarah’s testimony includes various mundane details such as that Bert sat in a large grey armchair, stroked their cat Tiddles, drank tea out of a blue mug, and so on. On entering Ted and Sarah’s house, we are able to confirm that Ted and Sarah do indeed possess a grey armchair, a blue mug, and a cat called Tiddles who likes being stroked. Would this effectively decontaminate Ted and Sarah’s testimony concerning at least the existence of Bert and other mundane claims made about him, such as that he talked about the weather and wore a red bow tie?

I think not. Surely Ted and Sarah’s inclusion of the extraordinary and unverified details that Bert flew around by flapping his arms, died, came back to life again and temporarily transformed their sofa into a donkey continues to render even the mundane claims made about Bert highly dubious. Dreams and hallucinations typically involve various aspects of reality, including people and places. Works of extraordinary fiction often locate their fictional characters in real settings and may even have them interact with real people. False witnesses typically weave true material into their testimony. So, once we suspect that parts of a narrative (the extraordinary parts) are the result of deception, hallucination or some other-false-narrative-producing mechanism, the discovery that some mundane parts of the narrative are true hardly serves to decontaminate the remaining mundane material. Because both true and false mundane details are by no means unexpected within such narratives, the discovery that several mundane parts are true is hardly a secure basis for supposing that much or all of the remaining mundane narrative is likely to be true.

Other reasons for rejecting P2

Historians may reject P2 on other grounds. They may suggest there are particular features of textual evidence that can rightly lead us to be confident about the truth of some of the non-miraculous claims, even if many uncorroborated miracle claims are also made. Several criteria have been suggested for considering several of the non-miraculous claims about Jesus to be established beyond reasonable doubt by the New Testament documents.

The three most popular criteria are the criterion of multiple attestation, the criterion of embarrassment, and the criterion of discontinuity.

The criterion of multiple attestation

Several historians (such as Michael Grant and John Meier) suggest that the fact that a number of different New Testament sources make similar claims in different literary forms gives us some reason, at least, to suppose these claims are true. C. Leslie Milton goes further – he argues that the New Testament gospels draw on three recognised primary sources (Mark, Q and L), and concludes that:

If an item occurs in any one of these early sources, it has a presumptive right to be considered as probably historical in essence; if it occurs in two…that right is greatly strengthened, since it means it is supported by two early and independent witnesses. If it is supported by three, then its attestation is extremely strong.

Milton provides a list of non-miraculous claims that he believes pass this test of “multiple attestation”, insisting they have a “strong claim to historicity on the basis of this particular test, making a solid nucleus with which to begin.”

If we already know that Jesus existed and is likely to have said at least some of what he is alleged to have said, this criterion might prove useful in determining which attributions are accurate. But what if we are unsure whether there was any such person as Jesus? How useful is Milton’s criterion then? Consistency between accounts can indicate the extent to which their transmission from an original source or sources has been reliable, but it cannot indicate whether the source itself is reliable. As Grant notes about the homogeneity of the Gospel accounts of the life of Jesus:

one must not underestimate the possibility that this homogeneity is only achieved because of their employment of common sources, not necessarily authentic in themselves.

The criterion of embarrassment

One of the most popular tests applied by historians in attempting to establish historical facts about Jesus is the criterion of embarrassment. The Jesus narrative involves several episodes which, from the point of view of early Christians, seem to constitute an embarrassment. In Jesus: The Fact Behind The Myth, Biblical scholar C. Leslie Milton claims that

those items which the early Church found embarrassing are not likely to be the invention of the early Church.

Milton supposes that reports of Jesus’

attitude to the Sabbath, fasting and divorce (in contradiction to Moses’ authorization of it in certain conditions), his free-and-easy relationships with people not regarded as respectable

all pass this test.

Michael Grant also considers Jesus’ association with outcasts, his proclamation of the imminent fulfilment of the Kingdom of God (which did not materialize), and his rejection of his family ‘because he was beside himself’ embarrassing to the early Church, and concludes these attributions are unlikely to be inventions of early evangelists. Meier, too, considers the criterion of embarrassment a useful if not infallible criterion. Regarding the baptism of Jesus by John the Baptist – which raises the puzzle of why the “superior sinless one submits to a baptism meant for sinners”  – Meier says,

Quite plainly, the early Church was “stuck with” an event in Jesus’ life that it found increasingly embarrassing, that it tried to explain away by various means, and that John the Evangelist finally erased from his Gospel. It is highly unlikely that the Church went out of its way to create the cause of its own embarrassment.

The criterion of embarrassment is related to a further criterion – that of discontinuity (they are related because discontinuity is sometimes a source of embarrassment).

The criterion of discontinuity
Many historians and Biblical scholars maintain that if a teaching or saying attributed to Jesus places him at odds with contemporary Judaism and early Christian communities, then we possess grounds for supposing the attribution is accurate. Again, Jesus’ rejection of voluntary fasting and his acceptance of divorce are claimed to pass this test. Historian Norman Perrin considers the criterion of discontinuity the fundamental criterion, giving us an assured minimum of material with which to begin . C. Leslie Milton concurs that this criterion gives historians an “unassailable nucleus” of material to work with.  John Meier considers the criterion promising, though he notes that it may place undue emphasis on Jesus’ idiosyncracies, “highlighting what was striking but possibly peripheral in his message”.

Are these academics correct in supposing that the satisfaction, either singly or jointly, of these criteria by the New Testament testimony is sufficient to establish beyond reasonable doubt that many of the non-miracle-involving parts, at least, are true?

A closer look at the criteria of embarrassment and discontinuity

If we know that Jesus existed, the criteria of embarrassment and discontinuity might perhaps provide us with useful tools in determining which of his supposed utterances are genuine. But let’s consider, again, to what extent these criteria are helpful in determining whether there was any such person as Jesus in the first place.

It’s suggested that a group of religion-initiators is unlikely to create a narrative involving elements likely to prove embarrassing to that religion, or which, by being radically out of step with contemporary thinking, are likely to prove an obstacle to its being embraced by others. But is this true? Consider:

(i)    What if the religion-initiators themselves have developed certain radical views, views that the religion is itself designed to promote? The fact that the radical nature of these views might prove an obstacle to the religion’s success will be irrelevant to the initiators, given that promoting those views is actually part of what the religion is designed to do. It is, I think, not implausible that if the Jesus story is a myth, it is a story developed by myth-makers who had certain radical ethical and other views (e.g. the Kingdom of God being imminent) that they wanted others to accept. In which case, the fact that the Jesus narrative has Jesus saying and doing things that are very much out of step with the thinking of his contemporaries is not good evidence that Jesus is a real, historical figure.

(ii)    The existence of embarrassing internal tensions or contradictions within a narrative is surely not so unexpected, even if the narrative is entirely mythical. We know that when stories are fabricated, they do sometimes involve internal tensions or contradictions that are not immediately apparent, only becoming an embarrassment for their creator later, when, say, he is under cross-examination in the dock. But then the fact that the Jesus story contains such initially unrecognised internal tensions or contradictions is surely not particularly good evidence for its truth. Indeed, ironically, the fact that a story involves apparent internal tensions or contradictions is, under most other circumstances, actually taken to indicate that the story isn’t true, not that it is true. In reply, it may be said: but some of these tensions must have been fairly obvious right from the start (the embarrassing tension Meier notes between the baptism story and Jesus’ supposed sinless nature might, perhaps, be an example). Why would such tensions deliberately be introduced by myth-makers? One possible answer is: as a result of compromise. When a myth is created, it may well be created to cater for several competing interests or interest groups, each with a stake in the outcome. The product may be an inevitably, and perhaps fairly obviously, flawed attempt to cater for these conflicting interests within a single mythical narrative.

(iii)    Is it true that initiators of new religions are unlikely to include in their mythical narratives ideas and episodes very much out of step with contemporary thinking, and/or likely to prove somewhat embarrassing to the religion? I am not sure a survey of new religions bares this out. New religions and cults often promote outlandish views significantly out of line with contemporary thinking. Consider scientology. Scientology’s initiator, L. Ron Hubbard, apparently taught his ‘advanced’ followers that 75 million years ago, Xenu, alien ruler of a “Galactic Confederacy”, brought billions of people to Earth in spacecraft shaped like  Douglas DC-10 airplanes and stacked them around volcanoes which he then blew up with hydrogen bombs.  These preposterous claims predictably provoke much mirth at Scientology’s expense. Hubbard must surely have known this would be the case (indeed, perhaps this why he attempted to restrict the information to “advanced” students). Yet he nevertheless chose to include them as part of his religion’s core (and, I take it, entirely mythical) teaching.

To summarize this section: we are looking at possible reasons for rejecting P2. Given the many extraordinary and unsubstantiated claims made about Jesus in the New Testament documents, P2 entails that, in the absence of any good independent evidence to the contrary, we should be sceptical even about his existence. I see, as yet, no reason to abandon this thesis. The three criteria examined above – multiple attestation, embarrassment and discontinuity – may provide us with useful tools in determining which attributions are accurate, once we know that some probably are. But they do not, on closer examination, appear to provide us with good reason to suppose that Jesus was not mythical in the first place (which is, of course, not to say we yet possess good reason to suppose he is mythical).

If you doubt this, then consider a second thought experiment: the case of the sixth islander.

The case of the sixth islander

Suppose five people are rescued from a large, otherwise uninhabited island on which they were shipwrecked ten years previously. The shipwrecked party knew that if they survived they would, eventually, be rescued, for they knew the island was a nature reserve visited by ecologists every ten years.

As the islanders recount their stories, they include amazing tales of a sixth islander shipwrecked along with them. This person, they claim, soon set himself apart from the others by performing amazing miracles - walking on the sea, miraculously curing one of the islanders who had died from a snakebite, conjuring up large quantities of food from nowhere, and so on. The mysterious sixth islander also had strikingly original ethical views that, while unorthodox, were eventually enthusiastically embraced by the other islanders. Finally, several years ago, the sixth islander died, but he came back to life three days later, after which he ascended into the sky. He was even seen again several times after that.

Let’s add some further details to this hypothetical scenario. Suppose that the five islanders tell much the same story about the revered sixth member of their party. While differing in style, their accounts are broadly consistent. Indeed, a vivid and forceful portrait of the sixth islander emerges from their collective testimony, containing as much detail as, say, the Gospel accounts do regarding Jesus.

Interestingly, the stories about the sixth islander also include a number of details that are awkward or embarrassing for the remaining islanders. Indeed, they all agree that two of the surviving islanders actually betrayed and killed the sixth islander. Moreover, some of the deeds supposedly performed by the sixth islander are clearly at odds with what the survivors believe about him (for example, while believing the sixth islander to be entirely without malice, they attribute to him actions that are appear deliberately cruel, actions they subsequently have a hard time explaining). These are details it seems it could hardly be in their interests to invent.

Such is their admiration for their sixth companion and his unorthodox ethical views that the survivors try hard to convince us that both what they say is true, and that it is important that we too come to embrace his teaching. Indeed, for the rescued party, the sixth islander is a revered cult figure, a figure they wish us to revere too.

Now suppose we have, as yet, no good independent evidence for the existence of the sixth islander, let alone that he performed the miracles attributed to him. What should be our attitude to these various claims?

Clearly, we would rightly be sceptical about the miraculous parts of the testimony concerning the sixth islander. Their collective testimony is not nearly good enough evidence that such events happened. But what of the sixth islander’s existence? Is it reasonable to believe, solely on the basis of this testimony, that the sixth islander was at least a real person, rather than a delusion, a deliberately invented fiction, or whatever?

Notice that the evidence presented by the five islanders satisfies the three criteria discussed above.

First, we have multiple attestation: not one, but five, individuals claim that the sixth islander existed (moreover, note we are dealing with the alleged eye-witnesses themselves, rather than second or third hand reports, so there is no possibility of others having altered the original story, as there is in the case of the New Testament testimony).

Secondly, their reports contain details that are clearly highly embarrassing to (indeed, that seriously incriminate) the tellers. This raises the question: why would the islanders deliberately include such details in a made-up story - a story that e.g. is clearly in tension with what they believe about their hero, and which, indeed, also portrays them as murderous betrayers?

Thirdly, why would they attribute to the sixth islander unorthodox ethical and other views very much discontinuous with accepted wisdom? If, for example, the sixth islander is an invention designed to set them up as chief gurus of a new cult, would they attribute to their mythical leader views unlikely to be easily accepted by others?

There is little doubt that there could have been a sixth islander who said and did some of the things attributed to him. But ask yourself: does the collective testimony of the rescued party place the existence of the sixth islander beyond reasonable doubt? If not beyond reasonable doubt, is his existence something it would at least be reasonable for us to accept? Or would we be wiser, at this point, to reserve judgement and adopt a sceptical stance?

A test of intuition

What I am presenting here is, in effect, a philosophical thought-experiment of the sort standardly employed in philosophy (such as e.g. Putnam’s twin-Earth thought experiment , and trolley problems designed to test ethical positions). Such experiments involve an appeal to our philosophical intuitions. What, intuitively, is the right answer to the above questions?

It strikes me as pretty obvious that the existence of the sixth islander certainly has not been established beyond reasonable doubt. Indeed, it seems obvious to me that - despite the fact that the three criteria of multiple attestation, embarrassment and discontinuity are all clearly satisfied - we are justified in taking a rather sceptical attitude towards the claims that any such a person existed. Yes it is possible there was a sixth islander. If we had independent grounds for supposing the sixth islander existed, such as evidence from a ship’s log, or a large number of witnesses from a neighbouring island who reported seeing six islanders, then it would be reasonable to suppose the sixth islander existed (whether or not he was a miracle worker).

But, while I acknowledge it might even, at this point, be slightly more reasonable than not to suppose there was a sixth islander, surely we would be wise to reserve judgement on whether or not any such person existed. We should remain sceptical.

In short, in the case of the sixth islander, our three criteria produce the wrong verdict, and P2 actually produces the right verdict.

Most of those to whom I have presented this thought experiment have had similar intuitions to my own (certainly, all the non-Christians have). Of course, appeal to thought experiment and philosophical intuition is by no means an infallible guide to truth . But I suggest that we have, here, a prima face powerful objection to the suggestion that our three criteria, either singly or conjunction, place Jesus’ existence beyond reasonable doubt.

(Notice that, even if your intuitions happen not to coincide with mine regarding the sixth islander, if the intuitions of the majority do - and that is my impression - that fact, by itself, would still raise a prima facie difficulty for the suggestion that the New Testament documents alone suffice firmly to establish the existence of an historical Jesus. It would be interesting to establish with more precision just how the philosophical intuitions of Christians and non-Christians line up regarding this thought-experiment, and, if they significantly differ, to investigate why that should be so.)

Of course, it is possible we might yet identify some relevant difference between the New Testament testimony about Jesus and the testimony about the sixth islander that explains why, if we are not justified in supposing the sixth islander exists, we are justified, solely on the basis of the New Testament documents, in supposing Jesus exists. Identifying such a difference is a challenge that those who take that view need to meet. Here is one suggestion. 

Does the cultural difference matter?

Our hypothetical islanders are, we have been assuming, contemporary Westerners, who are not usually in the habit of concocting miracle stories. However, other cultures are. Arguably, first century Palestine was such a culture. So, while the fact that many miracles are attributed to the sixth islander should rightly lead us to be sceptical about his existence, the fact that many miracles are attributed to Jesus should not lead us to be sceptical about his existence.

We can adjust our thought experiment to test this suggestion. Suppose our islanders are not, in fact, Westerners, but come from a tribal culture known to be fond of myth-making.

Now ask yourself: does this really make the existence of the sixth islander significantly more likely?  Some may argue that this cultural difference increases the probability that the islanders do sincerely believe at least the non-extraordinary parts of their story, and so lowers the probability they just made those parts up, thus increasing the probability that those parts are true.

But why suppose it’s now significantly more likely that islanders do believe even the non-extraordinary parts of their story? We know that sometimes, when a myth is invented, it is made up about a real person – as in the Haile Selassie case. However, other times even the central character is made up, as appears to be true of John Frum.

So, while we may know, given this culture’s penchant for myth-making, that this might be a Haile Selassie type case with a real person at its core, surely we cannot be particularly confident that it isn’t a John Frum type case with no such historical core. Particularly given the very large proportion of extraordinary claims woven into the narrative.

Final worry re. P2: what is a ‘significant proportion’?

A final worry worth addressing concerning P2 focuses on the expression “a significant proportion of extraordinary claims”. What is a “significant proportion”? Doesn’t the hazy and impressionistic character of this phrase undermine the practical applicability of P2?

I don’t believe so. Of course the expression is vague. I also acknowledge that there are some subtleties concerning contamination that deserve further unpacking. For example, it is surely not just the ratio of extraordinary events to non-extraordinary events that is relevant so far as contamination is concerned. The character of the events also matters. Reports of supernatural events that might easily turn out to be misidentified natural phenomena (such as Alexander’s guiding flock of ravens) presumably have less of a contaminatory effect (for it is less likely, then, that we are dealing with the product of an exceptionally powerful false-testimony-producing mechanism or mechanisms such as outright fabrication or fraud rather than, say, mere coincidence or an optical illusion). Extraordinary events that are not incidental episodes (e.g. a virgin birth tacked on to the beginning of a narrative) but largely integral to the main narrative presumably also have a stronger contaminatory effect, for it is less likely that they are merely later adornments to an existing non-miracle involving, and thus far more trustworthy, piece of testimony.

Nevertheless, the New Testament testimony regarding Jesus manages to pack in the region of thirty-five miracles into a total of just a few weeks or months out of something like the last three years of Jesus’ life. Unlike Alexander’s guiding flock of birds, many of these miracles do seem unlikely to be merely misinterpreted natural phenomena. And many are integral to the main narrative (as I say, the pivotal episode is a miracle). It seems to me, then, that the miracle-involving parts of the Jesus testimony must have a fairly powerful contaminatory effect on what remains.

Indeed, suppose the testimony concerning the sixth islander covers a few weeks or months out of the three years the mystery islander supposedly spent with the witnesses, that the same number of miracle claims are made about him as are made about Jesus, and that the miracles are of much the same character. If the miraculous parts of our five witnesses’ testimony concerning the sixth islander would lead us to be rather sceptical about whether there was a sixth islander, shouldn’t the miraculous parts of the Jesus testimony lead us to equally sceptical about whether there was any such person? If there is contamination sufficient to throw the existence of the miracle-doer into question in the former case, why not in the latter?

So while P2 is vague and may require some fine-tuning, it seems to me unlikely that even an appropriately refined version will allow us to say that the New Testament testimony does, after all, place the existence of Jesus beyond reasonable doubt.


This paper, while relevant to Biblical history, is essentially philosophical in nature. My focus has not, primarily, been on the historical evidence concerning Jesus, but rather on the principles by which that evidence is, or should be, assessed.

I draw three conclusions. The first conclusion is a moral: it is important not to overlook the effects of contamination – of the way in which the dubious character of the uncorroborated miraculous parts of a piece of testimony can render what remains dubious too. Many historians believe the New Testament documents alone provide us with testimony (even if second- or third-hand) sufficient to render the claim that there was an historical Jesus at least pretty reasonable, and perhaps even sufficient to place it beyond any reasonable doubt. We should concede that, other things being equal, testimony is something we do, rightly, trust. As Richard Bauckham, Professor of New Testament Studies, points out in Jesus And The Eye-Witnesses: The Gospels As Eye-Witness Testimony:

An irreducible feature of testimony as a form of utterance is that it has to be trusted. This need not mean that it asks to be trusted uncritically, but it does mean that testimony should not be treated as credible only to the extent that it can be independently verified.

Bauckham immediately concludes that the:

Gospels understood as testimony are the entirely appropriate means of access to the historical reality of Jesus.

As already noted, Biblical historian C. Leslie Milton also stresses the presumptive right of testimony to be trusted. About the early Gospel sources, he says:

If an item occurs in any one of these early sources, it has a presumptive right to be considered as probably historical in essence; if it occurs in two…that right is greatly strengthened, since it means it is supported by two early and independent witnesses. If it is supported by three, then its attestation is extremely strong.

I would agree that such testimony would have such a presumptive right, were it not for the significant proportion of miracle claims woven throughout its fabric. The Gospels are littered with around thirty-five miracle claims, many of a very dramatic nature. Nor are these miracle claims incidental to the Gospel narrative. To a large extent, the miracle stories are the narrative. Whether or not principle P2 is entirely right, it does seem that some sort of contamination principle must be correct, and such a principle might then well then constitute a serious threat to such presumptions about the reliability of New Testament testimony.

The second conclusion I draw concerns the three criteria of multiple attestation, embarrassment and discontinuity, criteria widely used to justify the claim that the New Testament documents alone suffice to establish firmly the truth of various Biblical claims, such as that Jesus existed. On closer examination, these three criteria do not appear (either singly or jointly), to establish, by themselves, a core of material within the New Testament testimony that we can justifiably consider “assured” (Perrin), an “unassailable nucleus” (C. Leslie Milton) or “unlikely to be inventions of early evangelists” (Grant). We tested these criteria by means of a thought-experiment: the case of the sixth islander. The testimony concerning the sixth islander’s existence clearly meets all three criteria, yet his existence, it seems to me, is by no means firmly established. It is entirely possible that Jesus existed and was crucified. I am not promoting, and indeed remain sceptical about, the claim that the Jesus story is entirely mythical. However, I have questioned the extent to which the New Testament documents provide us with good evidence for the existence and crucifixion of Jesus. They provide some evidence, of course. They may even make Jesus’ existence a little more probable than not. But do they, by themselves, provide us with evidence sufficient to establish the existence of an historical Jesus beyond any reasonable doubt? I don’t yet see that they do.

The contamination principle, P2, is a prima facie plausible principle that, in conjunction with other prima face plausible premises, delivers the conclusion that, in the absence of good independent evidence for the existence of an historical Jesus, we are justified in remaining sceptical about the existence of such a person. We have looked at several objections to P2, including the suggestion that the joint satisfaction of the criteria of multiple attestation, embarrassment and discontinuity is sufficient to justify belief in at least some of the non-extraordinary claims made in the Gospels, such as that Jesus existed. However, as noted above, when we test this suggestion against the hypothetical case of the sixth islander, the three criteria appear (to me, at least) to give the wrong verdict, and P2 to give the right verdict. My third conclusion is that P2 has not, so far as I can see, been successfully challenged.

Heythrop College, University of London, Kensington Square, London W8 5HN.


Thursday, 19 April 2012

Free speech at the old ballgame

I have suggested that the brouhaha over Ozzie Guillen's "praise" of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).

But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen's firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don't like.

I attended today's game at Marlins Park (against my inept Cubbies), the third game since Guillen's reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins' victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.

Mine are below.



Crime doesn't pay, but may taste good

From this link:

Former Florida guard Erving Walker has pleaded no contest to a petty theft charge of stealing a $3 taco ... and fined $301.

Walker, who just completed his senior season and ranks first in school history in assists, was arrested March 30. Gainesville Police said he ordered a taco from a street vendor, got the food and ran away without paying. ...

Roger Clemens Trial, Take 2

Barring an unexpected twist, like a mistrial being declared, U.S. v. Roger Clemens will be heard before U.S. District Judge Reggie Walton over the next four to six weeks.  This is the case's second trial, with last summer's trial being declared a mistrial because prosecutors showed jurors comments by U.S. Congressman Elijah Cummings about his views on the credibility of Andy Pettitte and his wife, Laura.  This is likely the last "major athlete and steroids-related perjury" case that we'll see for many years.  I suspect it will go out with with some fireworks.

I preview the trial for and also for CNN.

PZ Meyers and Sye Bruggencate video

Below is a bit of my book "Believing Bullshit" that refers specifically to Sye Bruggencate's notorious argumentative strategy with which PZ Meyers (Pharyngula) has to cope above at 10 mins onwards... interesting follow up discussion on the video. This is not Myers's finest hour. Sye's approach is an example of one that scientist atheists such as Myers tend to struggle with. You really need some philosophical knowledge and skill to cope at all well with Sye (and even then he is an extremely slippery customer)....

Linked to with thanks to Myers's site here. [if you want to know what "Going Nuclear" is, go here.]

Beyond Going Nuclear

There is an interesting twist on Going Nuclear popular in certain religious circles – a twist that involves combining Going Nuclear with “I Just Know!” It runs as follows.

God, some theists maintain, has provided them direct and certain knowledge of his existence. So, they suppose, they don’t have to assume God exists. They know he does (see “I Just Know!”). And, armed with this certain knowledge that God exists, she can then justify her reliance on logic and her senses. The God she knows exists would not allow her to be deceived in her use of logic and her senses. But the atheist, she thinks, has no such justification. So the atheist remains mired in skepticism.

Such a theist might be tempted to respond to her atheist critics by saying, “Ah, you are attempting to using logic against me, but of course, unlike me, you are not entitled to are you?” In fact this is one of the main argumentative strategies of one well-known commenter on various religious and atheist blogs who, in response to any rational criticism of his extreme, Bible-literalist brand of theism, typically ignores it, saying something like this:

I submit, that your worldview cannot justify the universal, abstract, invariant, laws of logic, which YOU presuppose in all of YOUR arguments, whereas mine can, and does.

Notice that, though this theist is playing the skeptical card, he is not, strictly speaking, Going Nuclear. Going Nuclear involves bringing all positions down to the same level of rationality. The claim made here is that only the atheist ends up mired in skepticism. Our theist plays the skeptical card in order to undermine the arguments of his atheist critics. However, our theist (he supposes) achieves a literally miraculous escape from skepticism himself. With one bound he is free – saved by the grace of God, whom, he supposes, provides him infallible knowledge of God’s existence, knowledge that can then be used to justify his own reliance on logic.

This way of dealing with criticisms of theism also fails. Whether or not our theist is right to claim the atheist is mired in skepticism, he’s still obliged to deal with the atheist’s arguments and objections. Suppose an atheist appears to have provided what looks like a cogent argument that our theist’s God does not exist, or good evidence that our theist is deluded in supposing that he “just knows” his God exists. For the theist to ignore such arguments and say, “But you are using the principles of logic which you can’t justify whereas I can!” is pure evasion. Whether or not atheists can ultimately justify the principles of logic is entirely beside the point. If the atheist’s argument is cogent according to the principles of logic, then our theist’s beliefs are, by his own lights, refuted. So the onus is still on the theist to show that what he has been presented with isn’t a cogent argument. And of course, if the theist can’t do that, then he’s dumped back in the skeptical swamp himself.

P.S. For my parody "proof" that Sye has been hit on the head with a rock and his brain addled, go here.

Quick thought on Dawkins' argument against God

Richard Dawkins offers an argument against theism in The God Delusion. The key issue is complexity. How do we account for the complexity of the world we see around us? Not, says Dawkins, by invoking the God hypothesis, because a God would have to be at least as complex as the complexity he is invoked to explain.

But is this an argument against the existence of God, or merely a refutation of one argument for the existence of God (the argument from complexity)? If the latter, Dawkins can hardly claim to have established there is no God. Even if the argument from complexity is a poor argument for the existence of God, maybe there are better arguments? Maybe there is a God nevertheless?

But actually, Dawkins claims to have shown that God must indeed be highly improbable because, if unexplained complexity entails improbability, then God must himself be highly improbable. Indeed - God must be even more improbable than whatever complexity he is invoked to explain.

In response, theists have argued, for example, that God is simple not complex. God is a single, simple mind which can entertain complex thoughts. The mind that entertains those complex thoughts is, nevertheless, itself simple.

Rather than get into that issue, I want to raise another worry - a worry concerning Dawkins's claim that his argument is "scientific".

Is it? The key principle seems to be that if the complexity of something is explained as the deliberate creation of a mind, then that mind must contain at least as much complexity as the complexity it is supposed to explain.

This principle does seem plausible. If I deliberately fully design and then subsequently build a mousetrap, that mousetrap's structure must be fully represented in my mind (or at least in my blueprint) prior to my building it. My representation must represent each of the various parts of the trap and how they fit and work together. So my my mental or physical representation must itself have parts. It must be at least as complex as the designed trap.

But, assuming this principle is true, is it a scientific principle? Did scientists discover it to be true?

If it were a scientific, empirically established principle about representations that they are at least as complex as that which they represent, we could be sure that it would apply to physical beings like ourselves. But then why should we suppose it applies to beings that transcend the empirically observable world, such as gods? If the principle is a mere law of nature (alongside other laws, such as that every action has an equal and opposite reaction) why suppose it applies to gods?

In short, if Dawkins's principle is a scientific, empirically established principle, it seems it can't do the work Dawkins requires of it.

However, if the principle were some sort of logical and/or conceptual truth about representation, then presumably it will apply to gods too. In fact, I think Dawkins's principle, or something like it, probably is such a conceptual truth (one that e.g. Wittgenstein's picture theory of meaning articulates - Wittgenstein's theory requires a structural isomorphism between a representation and that which it represents).

But establishing such logical/conceptual truths is the business of philosophy, not science. So Dawkins' argument turns out to be a philosophical argument, not a scientific argument.

In which case, Dawkins' well-known disdain for philosophy is ironic. He's actually doing - or needs to do - philosophy here, not science...

Oxford University Podcasts

Oxford University Philosophy podcasts here. Very good resource. A few by me (on God Delusion).

Wednesday, 18 April 2012

WLC debate

By the way I'd definitely be up for a round 2 with William Lane Craig if anyone wants to invite me at any point....

Earlier overview here. Plus see "Craig debate" in my sidebar.

Tuesday, 17 April 2012

Update on Fantasy Sports and the Law: Change Coming to Maryland

For those who may have missed it, the State of Maryland on April 1, 2012 passed House Bill 7 (pdf): a bill to exempt certain online fantasy sports games from its gambling prohibitions. Instead of prohibiting all fantasy sports games, the bill will allow the state Comptroller to issue special regulations related to the governance of America's fastest growing hobby.

The recent Maryland bill defines "fantasy sports" similarly to how Congress did in the 2006 Unlawful Internet Gambling and Enforcement Act. This means that the bill only applies to fantasy games that are based on skill, have predetermined prize amounts, and derive results from the performance of multiple players across multiple teams.

Based on this definition, it seems likely that Maryland residents will soon be allowed to legally enter and collect prizes in most fee-based fantasy sports contests. Indeed, CBS Sports has already amended its Terms of Service (here) to allow Maryland residents to collect prizes. By contrast, the Yahoo! Terms of Service currently continues to disallow Maryland residents.

For a more thorough discussion of the legality of fantasy sports games as well as a list of states where participating in fantasy sports games remains risky, see my 2012 Harvard law journal article, A Short Treatise on Fantasy Sports and the Law.

The War For Children's Minds

Review of my The War For Children's Minds in the Clarion Magazine... go here. Obviously you will want to follow this advice: "Buy it, read it and then buy a copy for the Head of your local school."

Some Ways of Defending Theism That Don't Work

Here are a few ways of defending Theism against e.g. the evidential problem of evil that don't work (which is not to say there aren't better responses, of course).

“I may not be able to prove there is a God, but no one can prove that there isn’t.”

When presented with a rational challenge to their belief, Theists sometimes say, ‘Look, I cannot prove there is a God; but then it is not possible to prove that there isn’t. So Theism and atheism are both “faith positions”. But then it follows that they are equally reasonable or unreasonable.’

But what, exactly, does ‘prove’ mean here? Prove beyond all possible doubt? It may well be true that we cannot prove beyond all possible doubt that there is no God. But then we cannot prove beyond all possible doubt that there are no fairies or unicorns or Santa. It’s just possible these things exist (perhaps there has been a huge and elaborate CIA-led conspiracy to hide the truth from us). But of course, no one insists that belief in the non-existence of Santa is, then, a ‘faith’ position. Certainly, it does not follow that belief in Santa is just as reasonable as belief that there is no Santa.

Perhaps the suggestion is that it is not possible to prove beyond reasonable doubt that God does or does not exist? But that is a very contentious suggestion. Actually, many Theists believe that the existence of God can be established beyond reasonable doubt. And almost everyone accepts that the available evidence establishes beyond reasonable doubt that there is no evil god. But surely, anyone who acknowledges that ought, then, to acknowledge at least the possibility of there being evidence sufficient to establish beyond reasonable doubt that there is no good God either.

“So how do atheists explain…?”

If we reject belief in God, how do we respond to one of the questions with which we began chapter two – why does the universe exist? What is our answer? Personally, I am not at all sure about how to answer this question. This is a deep and baffling puzzle to which I am not confident I possess a satisfactory solution.

Some Theists may take this to be an astonishing admission: “If you do not know the answer, they you do not know that our answer is incorrect! Your view is no less a faith position than ours.”

But to admit that one does not know the answer to a question is not to say that certain answers cannot reasonably be ruled out. Suppose Sherlock Holmes is having a bad day. There’s been a terrible murder. There are hundreds of suspects. And Holmes just can’t figure out who dunnit. However, while Holmes can’t identify who the culprit is, he is quite sure that certain people are innocent. The butler, in particular, has a cast-iron alibi. So Holmes is justifiably confident the butler didn’t do it, despite the fact that he doesn’t know who did.

In the same way, atheists can admit that there is a mystery about why the universe exists, and that they are utterly baffled by it, while nevertheless insisting that there’s overwhelming evidence that, however it came to be, it certainly wasn’t created by the all-powerful, all-knowing, all-good God of Christian theology. It may be that they can be as justifiably confident of that as they can be that it is not the creation of an all-powerful, all-evil god. Which is something almost all of us are rightly confident about.

An atheist “leap of faith”?

But don’t we all have to make a “leap of faith” at some point – atheists included? Atheists, after all, believe they inhabit a physical world filled with trees, houses, mountains and people. But they believe this only because that is the kind of world their senses appear to reveal. So how can they know their senses are a reliable guide to the truth? How can they know that their experiences are produced by a real world, rather than, say, a supercomputer generating a sophisticated virtual reality, as in the film The Matrix? After all, everything would seem exactly the same, either way. So atheists cannot justify their belief that their senses are fairly reliable. Their belief that the world they seem to experience is real involves a huge leap of faith.

Now it seems to many Theists that they directly experience God. So why shouldn’t they place their trust in this God experience, in the same way atheists place their trust in their perceptual experiences? Neither, it seems can justify their beliefs based on these experiences. Yet we do not normally consider the atheist’s trust in the reliability of his or her senses to be unreasonable. But then why should we consider the theist’s trust in the reliability of his or her religious experiences to be any less reasonable?

Further, the Theist might claim that, precisely because they do place their faith in their God experience, they don’t then have to place any additional faith in the reliability of their normal perceptual experiences. If there is a benevolent God of the sort the Theist seems to experience, that God will not allow them to be systematically deceived by their senses. So trusting their senses does not require a further leap of faith.

So, the Theist may conclude, at least for someone who has such religious experiences, belief in God need be no more or less a faith position than is the atheist’s belief in the external world.

This is an ingenious line of argument. It may contain some truth. It might be true that atheism is a faith position because any belief one holds about how things stand outside of ones own mind is ultimately a faith position (though I have my doubts even about this – for example, some philosophers argue that the view that physical objects, other people, etc. exist outside my own mind is the best available explanation I possess for various perceptual experiences I have, and is thus not a faith position at all, but a well-confirmed hypothesis).

However, even if any belief about how things stand outside ones own mind requires a leap of faith, it does not follow that it is as reasonable for Theists to place their trust in their God experiences as it is for atheists to trust their normal perceptual experiences.

Here’s one obvious difficulty with the suggestion that trusting a supposed experience of God involves no greater leap of faith than trusting the deliverances of your other senses.

Observation reveals that people have a very diverse range religious experiences. Some believe that, through such experiences, they know that there are many gods, some one god, and some (such as some Buddhists) no gods at all. Some experience the Judeo-Christian God, others Thor, others Zeus, others Mithras, so on. People have experienced literally thousands of gods and other supernatural beings (saints, angels, ancestors, etc.), beings with a huge and diverse range of characteristics. The existence of any one of these gods typically rules out the existence of many, and in some cases all, of the others. So we know that at least many of these experiences must be at least in large part delusory. But then isn’t someone who, knowing all this, nevertheless insists that their own particular religious experience is a reliable indicator of the truth being excessively credulous – far more credulous than someone who merely takes their normal sensory experiences to be fairly reliable (for at least our normal senses don’t provide us with good evidence that they are not themselves fairly reliable)?

A second difficulty with the above suggestion is that while the Theist’s assumption that they experience God might then lead them to trust the deliverances of their other senses, their other senses then quickly furnish them with ample evidence that there is no such benevolent being (see the problem of evil above). So, unlike the assumption that our normal senses are pretty reliable, the Theistic assumption actually ends up undermining itself.

N.B. This is from my OUP Very Short Intro to Humanism. Also note that the final section, while addressing the objection based on skepticism about the external world, would apply equally to the "atheism is a faith position too" move based on skepticism about logic (i.e. the point that logic cannot be justified in a non-circular manner). I'll leave you to figure out exactly how...