MonoRealism Philosophy Site

It's The Law

Part D

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.

Expert Tradesmen

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, specialisation is 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.

Expert Testimony

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.

Common Sense

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.

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.