Friday, May 30, 2014

Questions of Law and Questions of Fact

NOTE: These seventeen essays were reproduced from my now defunct former blog, Random Notes, as they are going to be cited in an upcoming essay. For the most part they deal with three subjects, "common sense" and pragmatism, organics and GMO foods, and the belief in the inherent purity and superiority of all things "primitive". A few are on other topics, but I think those three cover most of them.

A topic that comes up from time to time is arbitrariness in the law. In my series of posts on pragmatism and common sense1, I argued that such approaches tend to create arbitrary laws which cause chaos and make planning impossible. Similarly, I have argued2 that most systems which are not based on simple negative rights3, that is the rights of life, liberty and property, tend to include ill-defined terminology which results in arbitrary and unpredictable laws. It is not always the case, but the more laws deviate from simple protection of rights, the more they tend to become arbitrary. And, as I hope should be obvious4, unpredictable laws tend to produce detrimental results, so much so that I have argued that consistent laws, even bad ones, are preferable to the most benevolent, but arbitrary, ruler5.

However, when I have brought this up in the past, the inevitable response has been that all law is arbitrary, that law is always a judgment call6. Those making such objections even bring forth examples such as the seemingly nebulous terms "reasonable doubt" or "proximate cause" to bolster their arguments. However, what their arguments fail to understand is that there is a difference, and quite a large one, between an imperfect finder of fact, or less than precise standards of evidence, and ambiguity in the definition of the law itself. That is, they fail to take into account the differences between uncertainty in questions of fact and questions of law.

The easiest way to understand this is to look at a hypothetical set of murder laws. The first defines murder as the killing of another without a justification, and then proceeds to define those justifications. In this case, you will always know whether or not you are guilty of murder. Let us suppose, it then says, that at trial, you will be found guilty if evidence against you is given by a nuk-nuk. In this case, you might not know whether or not you will be found guilty, but you always know whether you actually committed the crime, and so can avoid acting so as to have to stand trial. Granted, if you stand trial, you have no idea if you will be convicted, but that is easy to avoid,a s you know clearly how to avoid standing trial.

Let us imagine a second law which defines murder as either killing a person or performing a nuk-nuk. Once again, we see an unfamiliar term, but here the consequence is quite different. Not knowing what nuk-nuk means, we have no idea whether or not we are committing a crime. We cannot avoid trial, as we don't know what is against the law. If we take the law seriously, we are likely afraid to undertake any action, for fear that it might involve performing a nuk-nuk.

Hopefully this will illustrate why I argue that vague laws, that is laws which are so defined that we cannot tell if we have committed a crime or not, are dangerous, while the inevitable uncertainty in any finding of fact, including that performed at trial, while regrettable, is in no way similar. Yes, I admit juries may sometimes hand down incomprehensible verdicts, obviously guilty men may be acquitted, a few innocents may be convicted7, but, in the long run, ambiguity in questions of law is in an entirely different league of problems. 

There really is little more to be said. I was reading some of my old posts recently and saw this argument come up again and again and decided I had never formally answered it in an essay to which I could point, so I decided to write out the answer once and for all so that in the future I could direct here any of those who tried to equate the uncertainty of juries with poorly crafted laws.


1. "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists"

2. "Bureaucracy and Arbitrary Power", "The Right People, The Wrong People and "Just Plain Folks"", "The Inherent Disappointment of Authoritarianism", "Stupid Quote of the Day (January 3, 2012)"

3. "Negative and Positive Rights"

4. "The Nature of Evil", "Life Without Villains", "Enemies Into Villains", "Rethinking My Earlier Position", "The Right People, The Wrong People and "Just Plain Folks"", "With Good Intentions", "Paved With Good Intentions",  "Recipe For Disaster", "The Endless Cycle of Intervention",  "The Cycle of Compassion", "Grow or Die, The Inevitable Expansion of Everything", "Three Versions of Evil and the Confusion They Cause", "Tyranny Without Tyrants".

5. "Shoplifting, Redlining and Kleptocrats"

6. "The Consequences of Bad Laws", "Exaggeration and the Law", "A Look at Common Sense"

7. Some would also argue that because law enforcement or prosecutors can misuse the law to arrest those who are clearly innocent it is another sign that all law is arbitrary. However, there is a huge difference between abusing existing laws, using them in ways contrary to their wording, and laws which are so crafted that they can be enforced in entirely arbitrary ways.

Originally posted in Random Notes on 2012/09/17.

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