It’s The Law
Philosophical Reflections XXXV
In Philosophical Reflections 34, we looked at the philosophy of government, one of two more specialised philosophies grounded in the philosophy of politics. Now we turn to the other derivative of politics, the philosophy of law.
The basic question is what is the purpose of the law? Once we answer that, we can consider how that purpose is best achieved.
If the fundamental principle of an objective theory of politics is individual rights, then the purpose of the law is to set the detailed rules by which those rights are defended.
In a free society, the government is not a ruler but the agent of the people’s self defence. Consequently, neither government officials nor private citizens can act on their personal whim when it comes to the use of force. The government cannot, because it must serve people’s rights; the people cannot, because those rights require that self defence is delegated, so that all force is held under objective not subjective control.
One of the triumphs of Athenian philosophy was the realisation that objective trials must take the place of personal vendettas if justice is to be achieved. This was dramatised by Aeschylus in his Oresteia trilogy, ending in The Eumenides when the tragic cycle of revenge for revenge for revenge was finally stopped by holding an objective trial with judgement rendered by the court.
It is the law which provides objective control over force, and this defines its purpose in more detail. Both the government and the people are subject to written law, which puts the use of physical force under objective control, achieving John Adams” prescription that we must have “a government of laws and not of men.” Government officials are as subject to objectively defined laws as anybody else, and citizens always have the right to query their actions in the light of those laws.
Thus the law defines on the one hand what people are forbidden to do, and on the other hand what the government can do to enforce that. The latter has two parts: how to determine guilt or innocence, then what to do about it.
We have seen in earlier Philosophical Reflections that the animating principle of the philosophy of science is truth and that of the philosophy of government is individual rights. Since the law is concerned with protecting individual rights, which requires finding out who did what to whom and acting accordingly, the animating principle of the law is justice. Justice is the purpose of the law, and therefore should be the primary goal of all those working in it, whether police, lawyers or judges.
The purpose of the philosophy of law is to determine what that means and how it can be achieved.
Justice means giving people what they deserve – what they have earned by their actions. Justice is necessary in human relations essentially because of causality: nothing can be had without somebody paying for it, if not the person who should then somebody else who shouldn’t. As Ayn Rand put it:
‘there is no escape from justice, nothing can be unearned and unpaid for in the universe, neither in matter nor in spirit – and if the guilty do not pay, then the innocent have to pay it.” – Atlas Shrugged.
If consequences such as rewards and punishments are disconnected from actions, then human life is made arbitrary or impossible, because actions are cut off from values and planning from outcomes. If the person who cultivates a crop did not own the result, there would soon be no crops produced at all. Everything achieved in the world requires someone’s work and thought, and it is not only proper that the achievement is owned by that someone, but necessary.
In the context of criminal law, in its most basic sense justice means defending the innocent and punishing the guilty.
As the principles of the law ultimately derive from the principles of politics (which ultimately derive from ethics), a fundamental requirement of legal justice is that individual rights must not be violated. This has two facets: those who do or try to violate individual rights have to be stopped, while those who don’t should be let alone to live their lives as they see fit. In the law this results in three principles:
- that the laws themselves must only target real crimes (ones involving the violation of rights, i.e. the initiation of physical force);
- that the guilty should not get away with it; and
- that the innocent should not be punished.
The second would mean that the initiators of force are allowed to continue operating, while the first and third would mean the law itself was an initiator of force, whether deliberately or accidentally. The law must abhor both sins.
The first principle, while shared by the philosophy of law, in practice is primarily determined by the philosophy of government and ultimately politics. Thus, invalid laws should neither be sought by the government nor allowed by the Constitution. So while the first principle is essential for valid and just laws, it isn’t the legal system’s task to achieve it (other than via such things as judges striking down laws that are found to be unconstitutional or otherwise flawed). Part of the separation of powers is that the courts apply the law, they do not write it.
So the law’s concern is that those guilty of breaking laws are identified correctly and treated accordingly, while the innocent are identified as such and allowed to go their way.
Thus a critical point of the philosophy of law is how to determine the truth. That is, how do we identify who did what, to catch the guilty and clear the innocent? Or to put it another way, as justice requires giving people what they deserve, to achieve justice one must know what people deserve.
Follow the Evidence
Since the law exists for the objective control of force, only to be used against those who initiate it, the truth of who that is must be determined objectively. Of course, from basic epistemology that is the only way any truth can be determined!
The law shares that requirement with science, but the task facing the law is different, at once easier and harder. In both cases the purpose is to examine the accessible facts of reality in order to discover other, hidden facts of reality. But whereas science deals primarily with principles, learning about broad laws of nature, the law deals with specific events, with who did what when and to whom. While science deals with everything from the subatomic to the intergalactic, it seeks to understand universal principles via the scientific method including reproducible experiments. The law deals with the simpler issue of the actions of people, but those actions are discrete events in the past. In that, the pursuit of truth in law is more like history than science, but as it concerns justice for living people, getting it right is more crucial. Thus its means are the collection and analysis of the evidence surrounding specific events, including how to handle a crime scene, forensic science, what evidence is admissible, how evidence is presented in trials, and the rules for evaluating it.
A detailed theory of legal evidence would require a volume of its own, so this discussion will be restricted to the basic principles.
The purpose of evidence is to discover and prove the truth. To do either of these things it must be both trustworthy and prove what it purports to prove. That is, for the argument if A then B is to prove its case, A must be true and A must indeed imply B.
Being trustworthy demands that officers of the law (including police and forensic scientists) are both competent and ethical. There have certainly been cases where racial prejudice or individual vendettas have led to corruption of the evidence, and when sloppy science has led to unjust results (both convictions and acquittals). Thus for the courts to trust the genuineness of the evidence presented, and therefore for the people to trust the courts, the relevant agencies need procedures in place to guard against, detect, and discipline any breaches. That includes appropriate training, organisational culture, and evidence handling procedures.
Actually proving what it purports to requires proper scientific validation of all kinds of evidence so that the courts have an objective measure of its reliability. Eyewitness identifications, for example, are notoriously unreliable in some contexts – yet humans are extremely good at recognising other people, so it can’t just be dismissed entirely. And that icon of forensic science, fingerprinting, is not as reliable as its reputation: less because of the faint chance that duplicate fingerprints might exist, than because the actual state of fingerprints found (partial, smudged etc.) can make identification in particular cases as much art as science.
Similar considerations apply to all types of forensic evidence, from DNA to fibres to insects. The proper studies must be carried out to determine exactly how strong their evidence is in terms of identifying criminals. And it must always be under review. For example, there have been many cases recently in which new forms of evidence (notably, DNA) have established the innocence of people convicted of crimes. Such cases must always prompt a review of why they were found guilty in the first place, and what that implies for the rules of evidence in courts of law.
Shades of Grey
Last time, we looked at the nature of legal evidence. Unfortunately, no matter how good the procedures for ensuring the validity of evidence and its interpretation, the nature of criminal evidence is that it is not always clear cut. After all, criminals do not want to get caught, and will often attempt to obscure or destroy the evidence that might lead to them. In any event, investigators have no control over the quantity or quality of evidence left at a scene. So unlike science, which can zero in on the truth by experiments informed by theories and previous experiments, and redo experiments with different variables and measurements, the law deals with discrete events that can’t be repeated, and is stuck with what it has.
That leads to inevitable grey areas where one runs the risk of either convicting an innocent person or freeing a guilty one – or both.
So the question naturally arises as to how much certainty is needed for a conviction or conversely, how much doubt is needed to prevent it. Does one act on the balance of probabilities – and if so, is “51% certainty” enough, or do we need more? Or does one act on the principle of “beyond reasonable doubt” – and if so, what constitutes reasonable doubt?
William Blackstone stated that it is “better that ten guilty persons escape than that one innocent suffer”, a maxim that is widely accepted if also widely renumbered. While this expresses an important truth – that the law should give the benefit of the doubt to the accused – it has little value as a literal principle. After all, why ten? The innocent who are convicted are victims of injustice (albeit not deliberate) whether they are one in ten or one in ten thousand, but if our criterion of justice is that no innocent people can ever be punished, then the law can’t function at all: the only way to do that is to convict nobody. Then there would be no law, and the innocent would suffer far worse. And if you let ten murderers go free to avoid convicting one innocent man: what if those ten kill ten more?
That last question illustrates a basic issue: the innocent will suffer whether the innocent are punished or if the guilty are let go. It is not an answer to focus solely on the former as if the latter is of no account. The purpose of the law is to ensure that as far as possible, neither the innocent are convicted nor the guilty released. Which again, returns us to the principle that the law must use, and only use, objectively defined rules of evidence for determining guilt.
Which returns us again to the issue that we can’t always know, objectively, who is guilty, but we have to act on our best knowledge. Which returns us again the the problem that there will be grey areas, but we have to deal with them in the interests of justice. Which means, we must convict if and only if the objective evidence indicates we must. Which by the nature of objectivity – reason applied to the observed facts of reality – means we can only convict if the accused is guilty “beyond reasonable doubt.” And “beyond reasonable doubt” simply means the evidence supports it and cannot be explained away without resorting to arbitrary claims.
But there is a further “grey area”, the time between arresting someone and proving objectively that they are guilty beyond reasonable doubt. Justice cannot be served if we just let everyone go and expect them to front up in court of their own free will; nor can it be served, in the other direction, if we treat every accused as if their guilt is proved in advance. This leads us into a crucial issue: the rights of the accused. That will be our topic next time.
Read ‘Em Their Rights
What rights do the accused have? This is one of the areas of the philosophy of law most in need of reform.
A basic principle, often evaded, is that the guilty have no rights they have violated in others. By violating another’s rights, they declare that they hold those rights null and void: therefore, they cannot claim them for themselves, as they have given them up. Thus a murderer has no right to life, a torturer has no right not to be tortured, and a thief has given up at least part of their right to property. Indeed, as all real crimes involve the direct or indirect initiation of physical force, criminals have in essence rejected the basis of any and all rights, their actions declaring that the initiation of force is acceptable. Having declared that force is the proper way for people to deal with one another, having denied the basis of rights, they are on shaky ground claiming any rights at all. Of course one can hardly demand such philosophical sophistication and consistency from the average criminal, but the point remains that in an argument over their rights, they are starting from the moral low ground.
Where the rights of the accused come in is from the objective nature of truth. Whatever rights the guilty have given up, in order to act on that we have to know they are guilty. This tension goes all the way back to the basic Duality of reality and consciousness, which is the basic nature of objectivity: what is, is, but that doesn’t mean we know it is. And because the legal system must be designed to avoid as far as possible any initiation of physical force against the innocent, and to protect the innocent from governmental misuse of power as much as from private criminals, this yet again leads us back to the principle that guilt or innocence has to be determined objectively, which is the purpose and role of the law and the courts.
Therefore, until their case has been tried by the courts, as far as possible the accused have to be given the benefit of the doubt. That is, until guilt is proved by objective means, the accused must be treated as if they might be innocent: for the simple reason that they might indeed be so, the primary legal tool for determining the truth being the court, and that tool not yet having been applied.
The rights of the accused stem directly from this. There is the right to be presumed innocent until proved guilty, though only in the sense above of being treated as if they might be innocent, i.e., not pre-emptively punished before trial. “Presumed innocent” in this sense doesn’t mean being freed: for this right does not trump the prima facie objective case against them (there must be one, or they could not be charged), which might require they be held in custody until trial. But that conflict leads to a second right, the right to a speedy trial: in the sense of both a quick preliminary determination as to whether and under what conditions the suspect should be released or detained (habeas corpus), and a full trial within a reasonable time (especially if the suspect is detained until then). There is the right to seek legal representation, to assist your defence – if anything, the innocent will have less knowledge and experience of the law than criminals. There is the right not to be tortured to extract a confession: because the innocent do not deserve torture, and in any event torture has nothing to do with compelling truth, only compelling the victim to say whatever the torturer wants. More generally, there is the right for only objective evidence to be involved in your trial: non-objective “evidence” is a contradiction in terms.
Unfortunately, non-objective legal theories have corrupted these rights into specifically protections of the guilty. This has led to many perversions of justice, notably the “getting off on a technicality” dodge and the “poisoned fruit” doctrine where evidence is suppressed if there is some procedural flaw in how it was acquired. These replace principles concerned with objective truth with a superstitious adherence to arbitrary forms of words (such as the famous “Miranda warning”: “You have the right to remain silent…”) and the mindless application of rights outside of the context of whether they apply (that is, ignoring or evading the question of guilt).
Instead, a proper formulation of what are true legal rights can be informed by examining who benefits and who suffers, the innocent or the guilty. Consider the suppression of damning evidence obtained by opening a cupboard without the permission of the suspect. If such evidence is thrown out, who is rewarded and who is punished? Clearly, the criminal is rewarded and his victim is punished. And tellingly, it also punishes the police officer who cares about justice, but not the one who doesn’t.
So working out what rights the accused do and don’t have is fundamentally simple: work out what rights the innocent have, and what rights the guilty don’t have.
We will look further into that next time.
In Part B I noted that determining the rights of the accused requires distinguishing between the innocent, who have rights, and the guilty, who cannot claim rights they themselves have violated. Now we turn to the implications of that.
Do you have the right to remain silent? In a simple sense, yes, because the police don’t have the right to beat you up to extract a confession. Therefore if you choose to remain silent, they have no legal means of forcing you to talk. However there is no reason to think that this means you can keep silent without consequence. It is perfectly reasonable to take such silence as evidence of guilt, and such silence should be regarded as evidence of guilt in the courts. Again, it is the guilty who gain by not answering questions, not the innocent, who have nothing to fear from the truth – the truth being that they are innocent! Of course the innocent might have reasons to not answer fully, e.g. if their answer would reveal something they wish kept secret. But their proper response is to say that, and attempt to persuade the police of their sincerity. (The court should have mechanisms to deal with just such cases, e.g. by providing a system for confidentially divulging such evidence of innocence, just as it has mechanisms for protecting commercial and security secrets that must be revealed in a case).
Do you have the right to “plead the 5th”, i.e., refuse to answer on the grounds that it might incriminate you? The answer is the same: yes in the limited sense that answers can’t be compelled, but no in the sense that refusing to answer on the grounds that it might incriminate you is pretty much incriminating you per se. Again, the innocent cannot be “incriminated” by facts: only the guilty can, and the purpose of the courts is most particularly not to protect the guilty, but to expose them.
Do you have the right to have evidence suppressed if your rights were violated obtaining it? As noted above, no. The guilty do not have such rights, and the innocent do not need evidence to be suppressed.
Does this then give the police a free hand in how they act, trampling over the gardens and rights of innocent citizens in their zeal to obtain evidence and gain convictions? After all, an excuse for suppressing evidence obtained by such means is to discourage such abuse.
Certainly not. The purpose of the law is to protect individual rights, and the protection against any abuse of power is the same as the protection afforded against any other criminal act: the law and the courts. If the police violate your rights, then they are as subject to the law as anyone else, and you can seek recompense and their personal punishment by the same means. The correct solution to the violation of the rights of the innocent is to punish those who did the violating: not give the guilty a free ticket to freedom. A potential violation of the rights criminals would have had if they were innocent, when they are guilty, cannot be used to forgive their own actual violation of the rights of the actually innocent.
An Insane Defence
The essence of insanity is an inability to perceive reality or act upon one’s understanding of it as a rational being. Therefore justice does not apply to the insane, any more than it applies to animals. Justice has meaning only in the context of volition: the choices made by a thinking being.
However, insanity as a defence should not be a free ticket out of gaol, for the simple reasons that if the “insanity” is a lie, that would be a gross failure of justice, and if the insanity is real, then justice does not apply for them either. An insanity plea is effectively saying “I am not guilty because I am merely a dangerous animal.” If one wishes to argue that one has no more responsibility for one’s actions than a rabid dog, then one has to bear the responsibility of one’s own argument and accept being treated like one – and dangerous animals are, justifiably, restrained or killed as appropriate to the danger they pose. So while responses to criminals vs. the criminally insane differ substantially in their reasons and motives, there might well be no difference in the substance of that response.
One thing that is not justified is somebody being declared “innocent” on the grounds of insanity and later persuading some psychologists that they are “now” sane and therefore should be released. In principle that is correct: if the person was insane when they committed the crime, then they were not guilty in a moral sense; and if they are now cured and sane, they are no longer dangerous. Unfortunately, that principle only applies if some objective measure and proof of sanity is applied, and the current state of psychology is woefully inadequate for the task. The objectively dangerous (as shown by their criminal acts) insane can never be released into society until and unless they are objectively and provably cured. They are not innocent any more than they are guilty: they are just dangerous. The rights and lives of the sane are not to be held hostage to them.
A crime is committed, evidence is gathered, and a suspect is arrested. Science and legal reasoning tell us what the evidence tells us, and how certain are the conclusions we can draw from it. How then does the court weigh up that evidence and come to a decision?
The first question is: how much evidence is enough? It follows from the right to be presumed innocent that the burden of proof is on the prosecution, to prove beyond reasonable doubt that the accused did the crime. (It has to be reasonable doubt, as nothing can be proved beyond unreasonable doubt – so crimes could never be punished and there could be no justice.) The exception is civil cases, where two parties are disputing something such as performance of contractual agreements. In that case, both parties are effectively “the accused”, so the only way to come to a decision how much each party is right or wrong is on the balance of the evidence. “Justice” systems in which the accused is presumed guilty inherently violate the rights of the innocent, and are typically symptoms of governments designed to violate individual rights, such as dictatorships and theocracies.
The second question is: who does the deciding? This is a complex question involving who presents what arguments to whom, and who makes the final decision. Much of Europe has an inquisitorial system, in which magistrates are directly involved in determining guilt and innocence. This contrasts to countries influenced by British law with an adversarial system, in which the court is an impartial referee between arguing parties (prosecution and defence). Or there could be a combination. In addition, both systems usually use juries made up of (ideally) impartial citizens, at least for serious cases.
The main problem with adversarial systems is that by their nature, the two sides are trying to “win”, and usually are more concerned with winning than with finding the truth. Yet, that means they are each highly motivated to ferret out whatever evidence they can find to support their case, and to poke holes in the opposing evidence: where a less personally involved magistrate might be less thorough.
If lawyers could be relied on to be ethical, an adversarial system would probably be the best because of that higher motivation. Unfortunately, what an adversarial system does is both motivate unethical behaviour (“win at all costs”), and reward it (lawyers with a track record of winning, in either prosecution or defence, attract promotions or higher fees – however that success is obtained). While there would be less scope for unethical tricks in an objective legal system, I believe it would still be an issue as the players involved in a case are people of varying rationality, intelligence and wisdom.
Before we go further, we need to consider the other party in legal decisions, the jury, so we will return to legal ethics later.
The desirability of juries stems from the basic need to limit the power of government, in this case, to protect citizens from the abuse of the law (or even from bad laws). By determining guilt or innocence via a jury of normal citizens who are not officers of the government, who need to protect the rights of the innocent in order to protect their own rights, corrupt governments and judges can’t just railroad innocent citizens at will.
The legal system often displays a schizophrenic attitude to juries. On the one hand, they are regarded as a vital lynchpin of justice. On the other, they are regarded as so brainless that they can’t be trusted to try a case if they have read about it in the newspaper or have an opinion on anything.
Unfortunately there is truth in both those attitudes. Juries are important, but randomly selected members of the population do vary in their intelligence, wisdom, knowledge, philosophy, biases and prejudices. And worse, the best candidates are less likely to be available for jury duty, as they are more likely to have jobs they can’t suspend for an unpredictable duration.
The obvious, if incomplete, solution is jury selection involving first a random selection of eligible people (criminals and people with a direct personal or financial interest in the case must be excluded for obvious reasons), then choosing from them those most able to come to a logical and just solution.
In principle, that is what happens. In practice, especially in the USA, it has been at least partly corrupted into a system where each side tries to fill the jury with people chosen to be most favourable to them, irrespective of innocence or justice. Thus we see the rise of the “jury consultant” who uses a variety of ethnic and other personal and statistical criteria to advise which jurors are likely to be most “favourable”. Hence the legal joke: “In England the trial begins after the jury is selected; in the USA, the trial is over after the jury is selected.”
In Parts A to C we have looked at legal evidence, the rights of the accused, and started to investigate how the truth should be sought in court. We’ll now look further into that.
As noted at the start, the animating principle of the law should be justice. Thus, the best mechanism for legal decisions needs to be determined not by attempting an even-handed balance between opposing parties irrespective of merit, and most definitely not by concerns to protect the guilty: but by the overriding motive of achieving justice in fact (what is the truth?) and action (what do we do about it?) That is, how best to protect the innocent: both anyone charged with a crime who is innocent, and the innocent victims of crime.
Any system which departs from this by rewarding legal tricks over the search for truth, or by promoting the biasing juries away from the best candidates to those most pliable to the tricks of one side or the other, does not fulfil this criterion.
Therefore, I support some version of the inquisitorial system. As with anything else, specialisationis a benefit in legal judgement, and if justice is one’s concern, one should take advantage of it. Judges should have the knowledge, experience and intelligence to ferret out the truth (if anyone can). Certainly both the accused and the aggrieved have a right to use legal counsel: but neither has the right to attempt to stack or fool the jury, and controlling that should be a vital part of a judge’s role. Certainly the accused have a right to trial by jury: but the jury should be chosen solely on their ability to try a case fairly, and again, the judge should have a large input into that. One practice that I believe should not be tolerated is the root cause of jury consultants: the right to reject jurors ad libitum on no specified grounds. Just as the law itself has to be objective in order to achieve its ends, so too jury selection must be objective and based only on facts relevant to the jurors” ability to reach a just conclusion.
The essence of a trial is the presentation and analysis of evidence. When the evidence requires specialist knowledge beyond that of the jurors or even the judge, how do they evaluate it? The usual method, of course, is to call expert witnesses, who do understand the evidence and can explain and testify to what it proves.
But what does one do if the opposing sides bring in opposing experts? One is left with the original problem.
By analogous steps and motives to those that gave us jury consultants, this problem has produced the “gun for hire” expert witness: someone paid well to testify, not to the objective truth, but to what a lawyer wants to win their case. There is nothing wrong with paying expert witnesses as such: an expert’s time is valuable. When it becomes wrong is when an expert witness is not testifying to the objective truth, whether that failure is due to corruption or simply error or incompetence.
Certainly there are sufficient bad scientists (in both senses of the word) for this to be a problem. Unfortunately, there is no absolute answer, for the same reasons as there is no absolute knowledge. But fortunately, there is an objective answer – for the same reasons as there is objective knowledge.
As neither jurors nor judges can be expected to properly distinguish between arguing experts, that judgement has to be assigned to genuine experts. That is, when such cases arise, the court needs to seek the opinion of established experts in the field. “Established expert” in this case means someone whose work is known to their peers and whose expertise has been demonstrated to the scientific community (in practice, national academies of science might be used, for example). Certainly scientists are neither perfect nor omniscient: but given a proper philosophical understanding of objectivity, mainstream scientists are capable of rendering such judgements (note that all proper functioning of the court relies on a basis of objective philosophy, so it is at least as safe to assume it here as it is to rely on courts in the first place). That is, scientists who have earned the respect of their peers by demonstrating the quality of their science, can look at proposed expert testimony and decide whether it is good, bad or open to debate.
Thus, a useful function of scientific societies could be to provide registers of reliable expert witnesses. And if there are “maverick” scientists who dispute the current wisdom but have been unable to impress their colleagues, then their recourse is the same as in any scientific dispute: gather more objective evidence. Of course if scientific bodies did recommend expert witnesses, they would be ethically required to treat any such disagreements carefully, fairly and objectively. In science the truth will eventually out, but where science informs legal judgements, it is vital that it comes out sooner rather than later.
In addition to the evidence pertaining to the specific events of a case, an important question in legal cases is what the law itself says. It might not be immediately obvious how the law applies in the particular case, due to new or unusual circumstances, or simply because the laws have merely set principles and left their case by case application to the judiciary.
This is primarily the role of the judge, informed by the arguments made by the other participants.
This is the origin of an important part of the law, the common law: the large collection of legal precedents set by past legal decisions. Of course past decisions may have been wrong (this is most obvious where past attitudes are incorrect or outdated, e.g. slavery or certain aspects of family law). However it has the important virtue of being based on accumulated reason applied to a multitude of concrete cases, and not only individual judges” reason, but tested and refined by other judges in subsequent appeals and cases. So each case uses such past decisions to guide its interpretation of the law – and in turn adds to the body of precedent to be used by others. And each judge has the option of refining or refuting the arguments of past judges with their own reasoning. In the long term, then, the common law can be expected to evolve into an increasingly rational and therefore just system.
We now have an overview of the tools we have for discovering the truth in legal cases. How this is actually used is up to the various parties, which leads us back to the question of legal ethics.
Just as each individual needs a code of ethics to guide their actions, so do professionals in fields with special ethical implications, such as law. Such ethics are not separate from more general ethics, but merely their application to specific circumstances.
So what can we say about the ethics of the main players here, the lawyers, judges, police and juries? As the animating principle of the law is justice, the answer for most of them is simple.
The heaviest burden falls on judges, as they have the most power to guide the course of trials and to set penalties. Judges require a strong sense of justice, which demands the most rigorous adherence to the truth and the rights of the innocent. Thus, a person should not even consider being a judge unless they believe, on objective grounds, that they have the intelligence and wisdom to pierce to the heart of complex cases; and likewise, they should not be considered for such a position by the courts unless they can pass suitable qualifying tests addressing those issues. They must hold themselves (and be held) to the highest standards of rationality, honesty, integrity and justice: not only for the sake of their own direct actions, but also as it is their responsibility to compensate for or prevent any lapses on the part of the other participants. Those virtues imply being impartial to all irrelevancies (age, sex, race, class, education, intelligence, religion etc.) while being passionate about all that is relevant (such as facts, logic and fairness). The consequence is that justice is not only done (the purpose of the law) but seen to be done (necessary if people are to accept the rule of law).
Perhaps the most difficult burden belongs to the police, for they are the only players armed, and they must make decisions involving their use of force and their response to force, protecting the innocent and stopping or catching the guilty, often operating in uncertainty about which is which. But like judges, their purpose is to uphold justice, and therefore they also must hold themselves to high standards of rationality, honesty, integrity and justice: again, impartial to the irrelevant and caring most about truth and justice, with as much a desire to identify and protect the innocent as to identify and stop the guilty. Like all virtues, that is eminently practical as well: when the police are trusted by the population, their job is made that much easier, for the innocent will treat them as their protectors not as arbitrary enforcers who can’t be trusted.
The job of juries is to weigh evidence and come to conclusions about guilt and innocence, including extenuating circumstances. So they share the requirement for the rationality required to reach an objective conclusion including ignoring the irrelevant, the honesty to care for the truth and the sense of justice to seek a fair verdict. Their numbers and the presence of a judge to guide them means, fortunately, that they do not individually need exceptional intelligence or knowledge: just basic rationality and honesty of mind.
The most complex questions of legal ethics concern lawyers themselves, and that’s what we’ll look at next time.
In Part D we introduced legal ethics, looking at the ethics governing police, judges and juries. What about the lawyers?
The most complex question of ethics belongs to the lawyers. After all, especially in adversarial systems, lawyers represent both sides. Thus, they fight for both the guilty and the innocent. This has led to a sometimes de facto, sometimes explicit morality that a lawyer’s primary ethical principle is to act in the narrow best interests of their client.
However, that is not valid: simply because it contradicts fundamental ethical principles. Lawyers are no less bound than judges, police and juries to be concerned solely with what is true and what is just. Yes, while they are taking someone’s money they are bound to do their best for them. But that is their best in context. That context is truth and justice. What “their best” means is first, to determine the objective truth of the case as best they can; and second, to act accordingly. Thus, if they believe their client is innocent, they must do their best to prove it. If they believe their client is guilty, then how guilty? Are there extenuating circumstances that might reduce or even eliminate the penalty – anything from honest mistakes to justifiable homicide? And if they believe their client is guilty and bad to boot, especially if their client has actually told them so (for “things look bad” isn’t the same as “known to be guilty”), then the best they can do for their client is to tell them to cop their punishment or seek another lawyer. A lawyer who defends people irrespective of their guilt is not acting ethically or honourably, but is aiding and abetting crime and shares in their clients” guilt. It is also worth a reminder that it is not actually in a criminal’s objective, long term best interests to get away with it. It is in their best interests to be caught and punished if that can help persuade them to give up crime. To be moral is in one’s best interests.
The primary job of lawyers is to uphold justice, which is an honourable profession. So it is a sad indictment that popular opinions of lawyers tend to range from Doonesbury‘s “a lawyer is a man skilled at circumventing the law” to Shakespeare’s “first thing we do, let’s kill all the lawyers.” Like the police and judges, however, it is the duty of lawyers to display the virtues required to earn the respect of the people.
One special corner of lawyer’s ethics worth examining in more detail is the “ambulance chasing” lawyer. This exists in forms from the literal ambulance chaser to those who would take on any case where they smell the chance for a percentage of a large monetary settlement. Their essence is prompting or encouraging dubious law suits in order to enrich themselves by a rationale akin to entering the lottery: they might waste a lot of time and lose many suits without being paid, but an occasional success more than pays for it.
To a large extent, they are merely doing what the system allows them to, so they thrive under non-objective law, which unfortunately has infected our legal systems. Under the influence of altruism, pity for people who suffer has translated into doctrines that somebody else must pay, and the criteria for “responsibility” have been bent grotesquely (generally involving blaming manufacturers or anyone else who actually provides anything people want, purely because they make things or do things, and things are what injure people).
So the primary solution to the injustices that result is reform of the law itself: with proper, objective means for determining responsibility for harm, including a proper understanding of risk and individual responsibility. It is a manufacturer or service provider’s duty to disclose any special risks that a normal person can’t be expected to know. It is however everybody’s responsibility to realise that everything has some risk and to assume the responsibility of their own decisions (another basic principle people need to be taught at school). People who think that they have a right to sue their doctor if he or she makes a mistake, should consider what a doctor should rightly say to someone who walks into their office and demands “heal me, but if you make any mistakes I’ll ruin you!” The doctor should tell them to go heal themselves. Doctors will of course compete for patients with not only their skills but whatever guarantees they are willing to make: but nobody has a right to impose unrealistic demands of perfection.
In addition to that, I suggest that two procedures could greatly help reduce the temptation to theft by lawsuit.
First, the use of “unspecified damages” has no place in an objective court of law. That is just a straight admission that the suit is not objective, but is an attempt at hitting the jackpot. If one has no idea of how much damage one has suffered, then that can be taken as an admission that nodamage was suffered, and the case ends right there.
Second, the whole “pay nothing unless we succeed, but then pay me a percentage” gambit needs reform. A case could be made for regulation of lawyer’s practices, as they are a component of the legal system and therefore involved in the whole issue of objective control of the use of force. However I think that is a stretch, and that the arrangements between lawyers and their clients should not be controlled: like everyone else, they have the right to voluntary trade under mutually agreed terms if force and fraud against other parties is not involved. And there would be genuine cases where such an arrangement could be fair and just (for example, someone has been genuinely harmed and can’t pay for a legal case, possibly because they have been harmed). However, one simple change would stop a lot of problems: if they lose, the lawyer pays to the court or defendant the cut they would have received had they won (or a percentage of that, depending on the court’s judgement of the case’s merits). Crime shouldn’t pay, in any form: and holding lawyers financially responsible for their actions would stop this form of crime-by-law from paying.
The first part of the law is catching potential criminals – this is the role of the police. The second part is determining guilt or innocence – this is the role of courts of law. The final part is what to do about it – this is the role of the penal system, which carries out the sentences imposed by the court.
This is another major part of the philosophy of law: what to do to criminals once their crimes are proved. Should the focus of the law be punishment for their crimes, rehabilitation of the criminals, or deterrence of other potential criminals? If punishment – what punishments are appropriate? If reform or deterrence – what does that entail?
The answer to punishment versus rehabilitation depends on one’s view of the basic nature of criminals. Are they victims of circumstance, malleable clay that has been shaped badly but can be reshaped correctly by some means – or free agents who have chosen evil as their way of life?
As humans have free will, except in the case of the insane or under extraordinary circumstances, a life of crime is prima facie a chosen life of crime. In that case, no amount of “rehabilitation” can be guaranteed to achieve anything. Someone who has chosen to stop dealing with other people by reason and instead deal with them by force, has already declared that persuasion is not what will move them. Instead, they have declared that they may do anything to achieve their ends – the least of which is deception. Making one’s primary focus “rehabilitation” in such circumstances is a fool’s game.
Instead, they should be given what they have chosen. If they believe people should live by force: let them discover what life is possible to them under the rule of force; let them learn the consequences by applying their chosen means of “survival” to their own flesh. Certainly, the attempt should be made to persuade them of the error of their ways: but as a secondary adjunct to their just punishment, not an alternative to it.
Some criminals can be and are rehabilitated. But that cannot be achieved by protecting them from the consequences of their own actions: only by demonstrating that their own actions are self-destructive. Those who can be rehabilitated are those still open, in some corner of their being, to the idea that people should deal with one another by reason not by force. But that idea requires that force be met by force: and those open to it will understand at some level the justice of their treatment, that they deserved it, and that they need to reform themselves for their own sake and for the sake of justice. In contrast, the last thing that will rehabilitate the rest is the further demonstration that their victims are suckers who not only cower before them when under the thumb, but appease them when they have the upper hand. No, the only chance to rehabilitate any criminal is the direct demonstration that they can’t get away with it: that whatever force they can wield is less than what they’ll get in return, that choosing a life of force makes them the suckers and losers: that the only way to live is by reason and voluntary trade.
Prisons are a poor system for anything (including rehabilitation). This is made worse by the modern habit of filling gaols with people who are not criminals, merely artificially made so by unjust laws against such things as drugs and out-of-favour consensual sexual practices.
When considering what is just punishment, it isn’t enough to just take criminals off the street for a few years. One must look at what they have done and what they deserve as a consequence. This can take us into interesting areas.
For example, merely financial crimes, that is, things like fraud, sneak thievery or computer crime, that do not involve direct physical force, in general demand mainly financial penalties (plus some means to prevent repetition). The main thing here is that crime should not pay. Of course it is impossible to make crime never pay, but one can certainly make it that crime does not pay on average. Thus a simple formula for financial crime fines is what they stole, divided by the solution rate for that class of crime, multiplied by a penalty factor of say two. For example, a man who steals $10,000 in a crime with a 20% solution rate would be fined $100,000. If that meant he was effectively in bonded servitude for the rest of his life: well, tough. Those whose bad (or even, merely unlucky) business decisions have bankrupted them are expected to bear the consequences of their actions. Even more so, then, that a person who has chosen to steal from others should bear the consequences of those actions. In my experience, the only people who think such treatment would be unfair are those who haven’t been victims of robbery themselves.
At the other extreme are violent criminals. In principle, I think the best punishment for them is simply giving them what they want. That is, what they want in practice. If they believe that the proper way for people to live together is by force: let them. Put them with their fellows who believe the same thing, and let them survive on their own, as best they can. They will soon learn how long looters can survive in the absence of the productive whom they simultaneously prey on and despise. How to achieve that in practice is another question: but, I think, a question worth asking. In this sense, I think the “eye for an eye” concept of justice is correct: not necessarily in such concrete terms, but in the more general sense of applying the principle that those who choose to live by force should be given their exact choice: without innocent victims to feed them.
Regarding deterrence as the motive of the penal system, certainly prevention is better than cure. But then one needs to ask how to achieve it. And in my view, there is no better way than justice itself. For the same reasons that the proper application of justice can aid the rehabilitation of those morally capable of it – by showing that there is no “life” of crime possible – so too is it the best tool of deterrence.
That leads us to the most severe penalty and a perennial debate in the philosophy of law: whether the death penalty is ever justified.
Clearly it follows from the principle that the guilty have no rights they have violated that the death penalty is perfectly justified in cases of murder and possibly extreme assault. Those who do not respect others” right to life have no right to life themselves (note that this is the only time the death penalty is justified, as only the deliberate destruction of life can justify taking it).
However, the obvious danger with the death penalty is the chance of killing an innocent person. As noted previously, there are enough cases of false convictions to give one pause. However, this is another case where the law needs to recognise reality. Even with conviction “beyond reasonable doubt”, there are obviously degrees of certainty. A killer caught in the act, with no justification for his crime, is beyond the question of innocence and has no right to life on that basis.
So my answer to this question is that yes, the death penalty is not only justified but desirable: provided that it is only for crimes that deserve death, and that the correct rules of evidence have been developed whereby more rigorous proof is required. Note that questions of whether the death penalty is a deterrent to murder are not germane. It may well not be, because the fundamental nature of criminals is to evade reality, and I believe truly evil killers simply believe they can get away with it. But a cold-blooded killer has chosen death by his or her own actions, whatever lessons their fate might teach others.
Also note that this does not “bring us down to their level.” There is a fundamental difference between taking innocent life and taking the life of murderers, just as there is a fundamental difference between attacking someone and defending yourself from them.
The purpose of the law is to bring the use of force under objective control, and its animating principle is justice. Thus it must do all it can to protect the innocent, punish the guilty, and in civil cases, correctly identify rights and obligations. Consequently, the laws have to protect individual rights, not violate them; the determination of truth in the courts must rely on objective evidence; and other than ensuring that the punishment fits the crime, the law should be primarily concerned with the protection or avenging of the innocent, not the protection of the guilty from either the truth or the consequences of their deeds.
For the same reasons, everyone involved in the administration of the law, including police, lawyers, judges and jurors, like the law itself, need to put truth and justice before all else.