Saturday, January 09, 2016

Ronald Sokol: Three Fallacies about Law

Ronald Sokol

I learned three things about law today from Ronald Sokol's article "Richard Dawkins' law delusion" (JoongAng Daily, January 8, 2016), namely, that most of us, and not just Dawkins, hold three major fallacies about law:
The first might be called the Crime Fallacy. As is true of many people, what first springs to Dawkins' mind when he thinks of law is criminal law. Criminal trials fill a large space in the public imagination, but - to borrow a metaphor from biology - they are but one cell of law's complex corpus. Most lawyers and judges never enter a criminal court.

The second is the Guilt Fallacy. Dawkins is "deeply shocked" to discover that a person who committed an illegal act may be found not guilty[, but this] confuses "guilt," which is a legal concept, with the commission of a forbidden act. Whether one has committed an act is a question of fact. Whether one is "guilty" is a question of law. A person may have carried out an act, but quite rightly be found "not guilty" - just as he may be found "guilty," even though he did nothing . . . . [In this case, the term "guilt"] means that the state has proved beyond a reasonable doubt that the accused committed the act. If the state cannot prove it beyond a reasonable doubt, the accused is "not guilty" - regardless of whether he or she really did commit the act . . . . The underlying premise . . . is straightforward: It is better to let 10 criminals go free than one innocent person be convicted. Centuries of legal history show that this system, though far from perfect, is the fairest that humans have been able to devise.

Dawkins' third and most fundamental fallacy is the delusion that law is about truth - "what really happened," as he puts it. Let us call this the Truth Fallacy. It is here that Dawkins goes furthest astray [because the] goal of law, unlike that of science, is not to determine truth; its primary aim is to minimize conflict. U.S. Supreme Court Justice Louis Brandeis summed up this understanding as follows: "In most matters, it is more important that the applicable rule of law be settled than that it be settled right." Even a wrong or "unjust" decision can end a conflict . . . .

The cornerstone of law is social harmony, and its ultimate purpose can be defined as promoting social happiness, a higher standard than mere harmony. Dawkins found happiness in science; we are all the richer for his contribution. But, judging by his memoirs, we are equally fortunate that he did not pursue a career in law.
On the other hand, if Dawkins had undertaken a career in law, he might be writing this very article to disabuse the scientist Ronald Sokol of these three fallacies about law.

By the way, I'd always thought of the aim of law to be justice, so I'm struck by the aim of law being harmony, which calls up Korean ways of thinking about the importance of a harmonious society. Are we Westerners and Easterners not so different in thinking, after all?



At 7:09 AM, Blogger N.E. Brigand said...

On the very first day of ninth-grade Western Civ. class, Mr. Wilberschied gave us one assignment: define "justice". As I recall (this was 30 years ago), I tried to do so by expanding my dictionary's definition to include definitions of all the definition's words. Next day in class, we were asked to defend our results, and I remember him complaining that my answer, with its reference to the mores of society, wrongly relied on consensus. He said something like "mob rule isn't justice".

It turned out he wanted to see if anyone would come up with Plato's definition, which he summarized as "everything in its place". I wasn't brave enough to ask, "Who decides what each thing's place is?"

At 8:01 AM, Blogger Horace Jeffery Hodges said...

"The Philosopher King, of course, a 'Teacher' writ large!" would have been his response if you had been brave enough to ask.

By the way, based on the expertise and wisdom in your comments over the years, I'd always thought of you as older than I am!

Now, though, I see that you were already more advanced than I in your approach to knowledge in the ninth grade.

Jeffery Hodges

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At 10:53 AM, Anonymous Malcolm Pollack said...

"It is better to let 10 criminals go free than one innocent person be convicted."

There's that number 10 again; it seems to pop up all the time. But why 10? Are we sure it isn't 2, or 37, or 2,137?

And what about the crimes, maybe even murders, those ten unpunished criminals will go on to commit?

We seem confident about all the principle quoted here, but what's the actual argument for it? If I'm skeptical, how will you convince me? Like so many ethical questions, it seems to lean hard on intuition, and little else.

At 10:54 AM, Anonymous Malcolm Pollack said...

Typo there. Oh well.

At 11:13 AM, Blogger Horace Jeffery Hodges said...

Typos happen. If you post again, with with a corrected version, I can delete the other.

Jeffery Hodges

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At 12:49 PM, Blogger Sperwer said...

Interesting piece. Sokol obviously writes from within the legal realist/pragmatist tradition of American jurisprudence, the figure from which is most likely to be recognized by the average educated reader being Justice Oliver Wendell Holmes, Jr., and the wider common law(yers) tradition from which it springs. Dawkins seems to be speaking from a contrary idealist position that does indeed go back to Plato (in the West). Rather ironic given Dawkins' adherence to Darwinism and evolutionism

At 12:59 PM, Blogger Horace Jeffery Hodges said...

Thanks, Sperwer, I was hoping you'd comment.

Jeffery Hodges

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At 1:06 PM, Blogger Sperwer said...

I also think Malcolm's questions are pertinent. However, they can also be leveled at the idealist presumption that there is some such thing as (perfect) justice. Any plausible defense of the "ten for one" proposition also I think involves "unpacking" that shorthand, i.e., contextualizing it and seeing esp. the way in which it cannot be really understood apart from the ideas of individual liberty and limitations on social and esp. government power.

At 1:40 PM, Blogger Horace Jeffery Hodges said...

These are certainly intriguing issues - about which I know only very little. Knowledge of law is one of my weak points. Let me put this more positively: Ignorance of law is one of my strong points.

But this blog exists to teach me what I don't know - in addition to letting me vent, rage, rant, moan, bitch, grouse, gripe, whine, whinge, and otherwise enjoy myself spending what-all I've managed to save up in my fussbudget.

Jeffery Hodges

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At 11:01 AM, Anonymous Anonymous said...

Late to the party it would appear. Again.

On "Justice."

Lately, at least here in the US, more frequently I'm hearing some variation of, "Justice for" (just picking a name out of the hat) "Trayvon."

But. That's inaccurate.

People are Taken to Justice - Justice is not something that can be ... oh I suppose, "bestowed" on an individual. And certainly Justice can not be awarded, won, etc as if it was a prize in for instance say, a raffle.


At 12:32 PM, Blogger Horace Jeffery Hodges said...

I wonder . . . is "justice" a legal term or just (so to speak) a position that one has, and if one is, say, the Chief Justice of the Supreme Court, what does the term imply about his work?

Jeffery Hodges

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At 1:47 PM, Anonymous Anonymous said...

justice (n.)
mid-12c., "the exercise of authority in vindication of right by assigning reward or punishment;" also "quality of being fair and just," from Old French justice "justice, legal rights, jurisdiction" (11c.), from Latin iustitia "righteousness, equity," from iustus "upright, just" (see just (adj.)). The Old French word had widespread senses, including "uprightness, equity, vindication of right, court of justice, judge." The word began to be used in English c. 1200 as a title for a judicial officer. Meaning "right order, equity" is late 14c. Justice of the peace first attested early 14c. In the Mercian hymns, Latin iustitia is glossed by Old English rehtwisnisse. To do justice to (someone or something) "render fully and fairly showing due appreciation" is from 1670s.


At 3:00 PM, Blogger Horace Jeffery Hodges said...

Is that the OED? It helps some, of course. Maybe Sperwer will explain things for us . . . or for me. I'm the one ignorant of the law - though ignorance of the law is no excuse, or so I'm told.

Jeffery Hodges

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