Sailing the Ship of Theseus, or Am I?

Offering Explanations and Apologies for Court Rulings, Both Good and Bad

by Bill Thomas

“The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away the old planks as they decayed, putting in new and stronger timber in their place, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same.”

Theseus” – Plutarch (75 ACE)

“It is not wisdom but Authority that makes a law.”

Thomas Hobbes, English Philosopher

According to the International Astronomical Union, Plutarch is no longer a planet.

According to the International Astronomical Union, Plutarch is no longer a planet.

That great, ponderable questions come up in the business of the design professions is nothing new. Take for example the metaphysical thought experiment posed by the “Ship of Theseus.” After his many journeys, Theseus sailed back to Athens where he eventually lived out his life. The Athenians kept and maintained his ship as a memorial of their returning hero for hundreds of years. Due to the deleterious effects of the passing of time, the ship’s planks had to be replaced one by one in order for the ship to be preserved. Eventually, hundreds of years later, all the planks of Theseus’ ship were replaced with new material. Nothing of the original remained, other than its shape and name. So, was it the same ship?

Thomas Hobbes, Seventeenth Century English philosopher, (portraited above) twists the facts even more to complicate the scenario. Suppose the shipbuilder repairing Theseus’ ship saved the old pieces. This artisan then reconstructed the ship from these original parts, so that there were two Ships of Theseus, one on display, made totally of replacement parts, and one reconstructed from the original parts. Hobbes quips thusly of the conundrum he created: “[the rebuilt ship], without doubt, had also been the same numerical ship with that which was at the beginning; and so there would have been two ships numerically the same, which is absurd.”

Hard to tell the difference at 40 knots.

Hard to tell the difference at 40 knots.

Would they not be the same ship? Are they different? Is not the reconstructed ship actually the Ship of Theseus? Or, are they both one and the same? The law of the “transitivity of identity” says that they are the same, but if that is true, then the law itself is violated. Would the result be different if the ship made up of replacement parts was sailed on a frequent basis so that it was something more than a museum piece? Do we not all change over time, yet retain our “identity?” Or, under a reductivist analysis, since the “matter” in both ships are completely different, are not the ships different? (The human body, according to some, replaces all of its “matter” every seven years…)

The thought experiment is not exclusive to Western philosophy. In fact, the Japanese have a similar exercise centered on the Gold Pavilion Temple in Kyoto. A Western author, when confronted with the premise that the temple, which had burned down and been rebuilt at least two times over was the one-and-the-same original, noting:

“I had to admit to myself that this was in fact a perfectly rational point of view, it merely started from an unexpected premise. The idea of the building, the intention of it, its design, are all immutable and are the essence of the building. The intention of the original builders is what survives. The wood of which the design is constructed decays and is replaced when necessary. To be overly concerned with the original materials, which are merely sentimental souvenirs of the past, is to fail to see the living building itself.”

—Douglas Adams, Last Chance to See, p. 149

The thought experiment encouraged by Hobbes has some application to our modern legal system, itself a vibrant, living organism, but, in theory constrained by its past. In this country, our system of laws is based on “precedent,” or “stare decisis,” a legal principle by which judges are obliged to respect the rulings established by prior decisions. Most courts are generally constrained to follow substantive rulings of superior courts, (in a state system, trial judges should follow rulings of the courts of appeal, and them, the state’s supreme court).

Always good to throw in a few citations to the Magna Carta.

Always good to throw in a few citations to the Magna Carta.

Lawyers argue their client’s positions to these courts based on research they perform of other, earlier rulings, on similar factual or legal bases. If a set of facts from one case to the next are very similar, and the ruling is one sought to be achieved in the present matter, a lawyer may say that the old case is “on all fours” with the current one, meaning identical to the present case, and therefore, logically, the same outcome should be achieved.

If A=B, and B=C, then A should = C. Right? Not always so in the law.

Judges do not always rule how you might expect. There are always minor, seemingly insignificant, differences in case facts that could result in different outcomes. And of course, mistakes are made. So then, how can anyone take an old case and attempt to apply it to their current situation? Judges with courage and confidence in the prior decisions should reach the same outcomes.

Both comments, that of Hobbes and of Adams, above, highlight the issues faced by design professionals attempting to navigate the many pitfalls and trapdoors of the legal system. Judges are not always so “overly concerned with the original materials” such that they apply the old law to the new facts. You cannot always assume the same pieces and parts assembled over again will create the same identity of outcomes. The maiden and made-again Ships of Theseus may or may not be one and the same, existing in different places and times and with different ship’s captains at the helm.

Sometimes it is not a good idea to meet in the middle.

Sometimes it is not a good idea to meet in the middle.

So, articles you see posted in this topic, “Ship of Theseus” will attempt to analyze case decisions on topics of interest to the construction profession, and hope to draw from the cases some lesson of precedential value, which should be applicable to a similar set of facts. Of course, the law is itself a human exercise, and therefore, imperfect. So, there are no guarantees here, only opinions of probable outcomes. And sometimes just a little sense of humor.

Let me know if you have any issues or legal rulings you would like to see explored in this section. I will endeavor to address problems faced day in and day out in the construction industry. Thanks again for reading.

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