Wednesday, November 12, 2008

Consulting the Oracle

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)
22ACrimR 130:

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

Monday, October 20, 2008

Separation of powers, Religion and the state

Separation of powers, Religion and the state
There is a current call for submissions open until 31 January 2009 by the Australian Human Rights Commission on the

Freedom of Religion and Belief in the 21st Century project

This is something all sceptical and legal minds should be aware of and partake in. In 1998 the commission made recommendations for the removal of anti-witchcraft and fortune telling laws from Queensland law.

The current research is looking at state and religion issues and if state and religion separation is important then submissions should be made. This writer will be making submission form the view that the state is and should be separate from religion.

There needs to be questions made regarding religion in other guises especially with regard to government funding of groups with a religious agenda. I am especially wary of an agenda of planned parenting where the service providers are of a religious persuasion and perform the legislated service using public monies.

Counselling of a medical type should be based on the science of the problem. If there are questions of morality and ethics then they are for the person with said problem to decide for themselves without the provider of medical information providing morality and ethical hints.

Fortune telling laws

The laws were formerly in the Queensland Criminal code act and are noted in the list of amendments in the current act as such;

Pretending to exercise witchcraft or tell fortunes
s 432 amd 1988 No. 88 s 5
sch 2
om 2000 No. 58 s 2 sch

As can be seen they were omitted from the act in the year 2000.

The old section was as follows;

Pretending to exercise witchcraft or tell fortune
432. Any person who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertakes to tell fortunes, or pretends from the person’s skill or knowledge in any occult science to discover where or in what manner anything supposed to have been stolen or lost may be found, is guilty of a misdemeanour, and is liable to imprisonment for 1 year.
I am not sure removing the section in its entirety was the correct action to take in light of the harm sought to be prevented. I think there is lots of potential harm this type of action can have. I think this is the case especially in light of persons claiming to be able to track missing children.

To date there I have been unable to find a corroborated story that shows a single event where a psychic or clairvoyant has been able to accurately locate a missing person by use of their powers.

There are examples where this has gone phenomenally wrong. I recommend looking at the supporting information for the story of a couple whose child was abducted and they were told by a psychic the child was dead. The child was located alive at a later date in relation to investigation of another child disappearing. When they investigated the new missing child they found the child they were looking for and also the supposedly dead child.
The story in question with supporting documentation is available at the link;
This is not to endorse the site against this person. The site does link to to reliable evidence to support the story. This instance was one that is easilly tracked using reliable evidence since the pronouncement was made in an open public forum.

I believe these wrongs were the type the legislation sought to prevent. A rewording of the section to remove the discriminatory nature against witchcraft would be advisable in light of the belief system of witchcraft being a genuine system that the government under the Australian Constitution is not permitted to make laws against.

116 Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
I am in favour of this section of the Constitution and feel the section as it stood was not in line with this section.
It should be noted that Section 116 does not apply to State Legislation but only to Commonwealth. The Queensland constitution appears to not mention religion in any way so technically they can do it subject to anti-discrimination law.

Yet fortune tellers are not in technical sense a religion or a belief system and as such do not warrant the protection of section 116 or an equivilent . Even though there is a section of the community who are believers this is not a system that should attract the protection.

Clairvoyants, psychics and similar persons who promote (and charge money for) a service whereby they claim they can locate missing items and persons should be examined critically. If they can prove in a scientifically tested situation such an ability exists then it is genuine. No proof exists for the existance of these powers that would stand scientific scrutiny or even a legal arguement in a court of law. At the current point these practitioners are merely exploiting a vulnerability of persons in these situations.

This is a wrong that should be legislated against to protect people in the hour of vulnerability.

Wednesday, October 8, 2008

Depression and law

It has been reported that lawyers in Australia suffer from a high incidence of depressive illness. This extends to law students where in the study 35% of students suffered from illness that warranted medical intervention.[1]

I can say that I am not surprised by this finding. I am a law student and I have suffered from a major depression during my studies for the law degree. It came to a crux with a marriage separation and suicide attempts.

I was unfortunately just starting a job in a law firm when everything came to head. I managed to struggle through the work at the firm for a number of months but had to leave eventually when my illness intensified and I was unable to continue with the employment.

I have experienced the darkness of depressive illness and through medication and CBT Cognitive Behavioural Therapy there is hope for a recovery.

So what does depression do to the student? This has not been very well investigated but I will use anecdotal evidence to demonstrate the practical effects of the illness on the student.

One major problem is an interference with the ability to concentrate. Procrastination can become a major activity and with deadlines for assignments and assessment items being a major factor of the law school experience there will be difficulties in meeting these assessment requirements.

This extends into looking for jobs, holding down jobs and relationships. Depression when it affects a sufferer will affect all aspects of the sufferer’s life.

The current system has no pity on the sufferer of depression. I am in the situation where I have begun to recover and have to catch up on my work. I have missed the deadline for job applications for next year with a number of large firms. I am now looking down the barrel of leaving university without a job to go into.

The problem then is that having missed the deadline there is an increase in depression. The whole legal endeavour appears to have the effect of once depression is suffered it is going to get worse not better. A legal job is not the place to have a lot of doubts regarding your own ability.

I ask myself why there is such a high incidence of depression among lawyers. Association is not causation so we cannot assume that the study and practice of law is the cause of depression. However the study does suggest that more research is required in order for this to be understood more fully.

The law report article referenced above shows how our profession is a set up for problems.

Where funding for this should come from will be a debate topic but I think it should be on the law societies to look into this as it is their members and future members who are suffering.

Possible contributors to legal depression

Poor public image

Poor public perception of law is common. Studies have shown that lawyers do not rate highly in the public’s perception of ethical behaviour.[2] At position 13 the lawyer does not feature highly in the publics mind as being ethical. At least we are higher than talkback radio announcers at position 20.

There is a lot of debate as to why we as a profession are held in such low regard. The existence of the multitude of legal humour suggests there is a problem.

This lack of a positive public perception of the lawyer makes the depressed lawyer sad. Each of us as lawyers has to grapple with the ethical side of practice as individuals and reason why we are lawyers in the first place. Having our ethical choices attacked is painful and adds to the burden that being a legal practitioner places on us personally.

Dealing with people in distress

Depending on your field of practice you will come into contact with people who are in distress. It is hard to imagine a field that will not have distressed clients involved. We readily accept that matters of family law will be emotionally charged. Yet a will can be emotionally charged especially if one is being challenged. Just the planning for death is a distressing thing in the writing of the will as people imagine their mortality.

Our legal training often revolves around professional detachment as a guard against this problem. I have been advised by practitioners to remember that it is the client’s problem and not yours.

It is possible that the detachment required to protect ourselves is seen as coldness by the public.

Difficult ethical questions

We are asked to do a lot as lawyers and not for our own benefit. If you are not a partner you don’t have choice in representation. So you have to ask yourself ethical questions and justify your actions against your own morality framework.

It is the lawyer’s role to advise the client but they are the ones who make the choices. Sometimes these choices will go against your own system of morality.

Long working hours

It seems to be a fact that lawyers work long hours. This places pressure on other relationships and endeavours. A recent graduate I had a discussion with said that they were pleased the law firm gave gym memberships to their employees. I was disturbed by this as I saw it as not being the work life balance as promoted by the firm but a way for the firm to benefit.

Let me explain further by suggesting that being fit is productive to your working life. Gyms are open late hours and as such provide a way to maintain fitness at convenient times. So the firm gets fit employees who can go when it is convenient for the firm and not really the employee.

This does not address the hours worked or the lack of sunlight the new graduate fails to see. A work life balance is more than a gym membership.

Competitive nature of law

To do law is to fight. This seems to be the basic premise of all law. You compete for the best grades at law school; you compete for the best jobs or any job for that matter. Success is based not on the quality of things or the input to society but on the remuneration package and the prestige of the position.

Public interest law is seen as good when it is coupled with a profitable and prestigious practice. The so called “Bluejeans” lawyers who follow a career in public interest law are not paid well and lack prestige. Prestige is linked to earning and position.

So the lawyer must constantly fight, on behalf of their clients and against their peers. In a culture of competition I feel the possibility to become depressed is high.

No room for mistakes

Due to the once off aspect of the legal system there is no room to make mistakes. This is a very high standard to have to meet. I don’t argue that it can be any other way since these are peoples lives we are dealing with be it their compensation claim or their liberty. I just recognise there is a lot of pressure to be right always.


The practice is a business and needs to make money. You have to record every moment of your day to ensure that there is proper billing in place. Yet there is guilt associated for having a bad day if you are a little slower than usual and you bill more than you think is fair.

Having to account for every 10 minutes of your day may make you feel closed in.


We advise we don’t decide. We can’t advise on if something will win or lose. We can only give a probability based on conjecture. Nothing is certain in a legal matter. If it were the courts would have less involvement by far.

Yet we lose when we feel we should have won. The client won’t blame the legal system or the other side in the matter. They are going to blame the lawyer. The client never thought at any stage they were wrong or did not have a strong enough case. Clients don’t think like this. So we lose and we are the brunt of the matter.

I do not suggest these are the causes of depression or that a legal career is the cause of depression in practitioners and students. It is worth considering why there is an association with legal practice and law. I hope that the legal societies fund some research into the association so that firms and schools will be able to address any causation factors related to law.


Tuesday, October 7, 2008

Legal sceptical opening posts

Every sentient being seems to have a blog of late. I am interested in how sceptical thought and the legal system interact. This is on a jurisprudential level as well as a humours level.

One main area is in the realm of consumer protection legislation. How do we protect the public from scammers and charlatans?

Do the laws covering the fields of quackery and alternative medicines operate to legitimise rather than to protect the public?

These are important questions that I hope to address. I have no delusions that I will be capable of forming an answer as the size of these ultimate questions is beyond the scope of this writer.