This post is about why sceptical thought; free thought and enquiry are valuable in a legal arena. We ask people to make decisions about truth and innocence. If these decision makers are not using reason and rational thought then this process may be poorly done. A sceptical and rational thought process may help what is a flawed system of decision making.
The title refers to a concept I was introduced to during my studies of law and of environmental science.
During a statistical lecture we were introduced to a story the lecturer told to the students every year. No one really understood the relevance of the story at the time as we grappled with other concepts such Bernoulli trials and other statistical methodology. Although a learned professor there was difficulty for the student in comprehending the message due to communication barriers.
The story runs something like this;
A particular horticulturalist tribe would have big questions that they could not answer. So they developed a ritual whereby they consulted an oracle. They would take a chicken and feed it a poison pill. The pill would sometimes kill the chicken and sometimes not. Should the chicken die or not was not predictable. The story never entered into the idea that a clever practitioner could enhance the pill to ensure an outcome so I won’t discuss the potential abuse of the system here.
According to the example given there was an equal statistical chance of death or survival. Basically this was the Bernoulli trial and the same as flipping a coin. I assume this was the point being illustrated by the lecturer.
The ritual ran, we were told, by the chicken being fed the pill and a question being asked. The question was phrased so that survival or death of the chicken would be a yes or no answer.
I worried at the time the difficulty in playing the guessing game of twenty questions where on person thinks of a thing or person and the audience has twenty questions with yes or no answers in which to answer. I know the tough ones can take all twenty questions and still fail to solve the riddle. I imagined a wholesale chicken slaughter occurring as a result.
This was consulting the oracle. Unfortunately the lecturer never referenced the tribe who performed the practice so it could not be verified. However it is a simple example and is likely indicative of some oracle basic methodology of consultations. The old witch burning folklore suggests similar trials where by survival or death related to an outcome based on similar unconnected associations.
This story was again revisited in another lecture. This time the story was told in Jurisprudence where it was examined in a historical context. It was discussed as a form of jurisprudence whereby legal truth is determined by reference to a supernatural force or being.
The lecturer then suggested that although we may scoff at the idea of calling on a supernatural power to determine truth it was a continuing practice.
The lecturer suggested that the judge and the jury system were a form of oracle.
Now for a law student such as myself this was powerful stuff as well as controversial. We had so much to grapple with learning common law and application of law and everything else a law student struggles to grasp. To have a lecturer challenge what to us was the foundation of legal thought and rights bordered on the horrifying.
It took some time to come to terms with this concept. To be accurate to took years after the course to actually understand what this meant. The idea of the jury and or judge as oracle came hard and I still struggle with it.
Yet in many ways the lecturer was correct in this observation. We pose the question of guilt or innocence in criminal trials to a jury. In the majority of civil trials we pose the question of right and wrong to a judge or judges.
They are to hear the cases before them and pronounce at the end the truth of the matter.
For criminal trials this based on the idea of “Beyond Reasonable Doubt”. What this statement means is an issue in itself.
The phrase is not to be illustrated or explained to the jury by the judge:
Dawson (1961) 99 CLR 1, per Dixon J. Wilson, Tchorz & Young (1986)
To suggest the level or being sure is an absolute
certainty of guilt is definitely not permitted Condo; ‘Absolute certainty’ not
appropriate: Gonclaves (1997) 99 ACrimR 193. See also Punj (2002)
132 ACrimR 595.
So we are left with something that is left to common sense to understand. In law we use the term reasonable as a benchmark but this does not allow for the extreme variability of the human experience.
I am beginning to develop the idea that the “reasonable person” as oft quoted in law is a construct. It is a legal fiction we create in order to give relevance and authority to common sense approaches to questions.
The problem appears for me to be a clash of ideas. In science there is a benchmark whereby the factual nature is said to be true. It is based on being able to statistically assure certainty on a P value. I suggest checking a statistics primer to get this P value business sorted out.
Yet in a court there is no P value apart from when assessing the results of a scientific test such as DNA evidence.
You cannot outline the facts of a case with a testable P value. It ends up being do we believe innocence more than we believe guilt.
In essence we consult with the oracle and hope it gives the correct answer.
I am not promoting the tearing down of the system. I think however there may be somewhere a better system to be imagined.
I have found that it can be difficult to have scientific certainty on one side of my degree and reliance on uncertain human thought on the other.
So if we require people to make decisions as the oracle then a good healthy dose of sceptical thinking is required by the oracles.
You need to weigh up evidence and competing theories and using sceptical thinking should give better answers. Sceptical thinking is a discipline of thought and as such incorporates logical reasoning.
I would hope such reasoning would find a good home in the jury box as it does in the scientific world.
Judges I hope are rational and reasoned in their thinking. The need to justify their decisions in written judgement helps to ensure the reasoning is held to some scrutiny and hopefully encourages sceptical thought.
However it would take little effort to find nonsensical argument in judgements so who knows where we stand on that position.
So here’s to sceptics in the jury box and hopefully reason behind the oracle