MonoRealism Philosophy Site

It's The Law

Part C

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.

Limited Rights

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.

Decision Time

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 Twelve

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."