MonoRealism Philosophy Site

It's The Law

Part B

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.