The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:
Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional – always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science cant make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.
(The column is in the locked-down part of the website, so if youre not a subscriber youre going to have to trust me in a decidedly unscientific way.)
This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society. Law – or at least the opinions of judges – is all about self-deception. Thats the point.
That sounds so negative that its likely to provoke defensiveness, so Ill put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories. The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law. (See post 137.) Its what law professors teach.
So Professor Miller, victim of the cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head. The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld. You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.
(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of societys members, or rather that its reasonableness is not open to question.) (The law meets Parks definition of a religion. Law professors teach theology, judges enforce orthodoxy.)
This intellectual method means that the law is not open to new information. Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories. The metaphor of a letterpress printers drawer is pretty exact: who needs a character that doesnt already have its own little compartment?
A quote Ive seen attributed to Catherine McKinnon, but which I cant find on the Web, says that the law doesnt prohibit rape, it regulates it. I think thats true of all violent crimes. Yet – and this is the critical thing – the people doing the regulating (judges) would deny that theyre engaged in any such activity. And theyd sincerely believe it, too, or at least profess to, as an article of faith.
Heres a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individuals Fourth Amendment interests against its promotion of legitimate governmental interests."
But look at those familiar words more closely. The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury. (Only relevant evidence is affected by judge-made exclusionary rules. If the evidence wasnt relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it – or the defense for objecting to it, except on the ground that trials are tediously long enough already.)
Judges who decide to hide relevant evidence from the jury dont describe it to themselves in those words. They tell themselves theyre engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality."
Look at that sentence structure. In real life, whats happening is that judges prevent the jury from hearing evidence. They do so in hopes – specifically, the Supreme Courts hopes – that deceiving the jury will influence the behavior of people who arent present and may never learn about it. But in the way judges phrase it to themselves, the wish comes first. Its the important thing.
The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above. By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular …" They werent deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice. Judges Photo-Shop the portrait and call it plastic surgery.
Thats just the beginning of the self-deception packed into that sentence. Whenever judges use any form of the word "balancing", what they mean is: choosing. The Court was telling judges to choose which of the two (and there is rarely more than two – the metaphor controls the variables) "interests" he or she considers more significant.
What, you may ask, is a "legitimate governmental interest"? When youre talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer. When a judge "balances" governmental interests, what hes really doing is deciding the marginal value of the officers life.
That sounds extreme, but only because were so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details." Self-evidently, in every encounter the cops life is at greater risk if the person he is confronting has a gun, knife or club. The cops safety is increased if he disarms an armed person.
With me so far? Thats really all there is to it. The cops safety would be maximized if he patted down everybody he came into contact with. So if judges actually control police conduct – which judges tell themselves theyre doing – then when they tell cops theyre not allowed to pat down people in certain circumstances, they mean that officers mustnt maximize their safety. They must accept a greater than minimal risk of being injured or killed.
If the judges are competent in their calibration of risk, theyre imposing only a minor marginal increase in risk. But a small risk spread over a large population – say, 675,734 sworn officers – becomes numerically significant pretty quickly, especially to those attending the funerals.
So when judges decide cases about frisks, theyre asking themselves: How many murdered policemen is too few? And how many is too many? How many official funerals with long motorcades is just right?
Once you strip away the fuzzy language, you can see why judges use it so obsessively. They want to distance themselves from what theyre doing. "This isnt just a gut feeling, you know – Ive weighed it. The scales dont lie."
But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.
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