Law Is Too Powerful to Follow the Truth, Advocate, 25/10/2017

At this moment, at least, powerful conceptual and emotional spasms are pounding through our society. The long-awaited acknowledgement that Harvey Weinstein was a serial sexual predator throughout his entire career as a Hollywood mogul has caused a media exorcism of horror and shame.

Yet everyone knew about it. There were rumours swirling about Weinstein for decades. Actresses at every level of power and fame would whisper to each other, warning each other to be careful around him. Everyone knew.

It was just one feature of a climate of abuse throughout the entertainment industry. Allegations continue to confirm what everyone already knew about performers, photographers, directors.

Here's one profoundly depressing – I think because it feels so
inevitable – of Harvey Weinstein's explosion. He doesn't think he did
anything wrong, and that it was all consensual. I think he actually
believes that all the horrible, icky things we read in the accounts of
so many women are ordinary, legitimate ways to obtain consent.

In some of the long, exploding mess of discussion in the media and among more ordinary folks on the internet, a friend of mine got into a huge amount of trouble. Most of the rage directed at him was the result of his natural sarcasm being not quite appropriate for the context at the time.

But aside from putting his foot in his mouth (allowing so much of Twitter to bash it in deeper), my friend made an intriguing point. I still think he was wrong about it, but he was wrong in a way that helped me clarify some ideas about how we rely on the law.

Particularly the wrong ways we rely on the law. Legal theorist friends – shoot me some feedback if you see this.

My friend’s idea was that if Harvey Weinstein was brought to trial, we’d be able to figure out the truth. Now, I think that’s incredibly wrong-headed and ridiculous. And I’m going to tell you why.

But I’m going to say why without any more reference to patriarchal social structures, or any other concepts about systemic inequality or discrimination. Because I want to write something that will be believed by people who already don’t believe in all that.

It has to do with different standards of truth for different purposes. See, I’ve already seen this dynamic play out in Canada, and it went very badly. That was Jian Ghomeshi’s trial for sexual assault.

The film producer and his second wife, Georgina Chapman, in 2011.

Harvey Weinstein made himself out to be different from the predatory
Hollywood moguls of the past because the Weinstein Company was
cool in a way those stuffy hokey old-fashioned images could never
manage. But he showed every sign of being just another one of
those old men who used money and power to control much
younger, vulnerable women. If it looks, walks, and quacks like
a duck . . . Do I need to finish that?

Ghomeshi was found not guilty. One reason was because his defence lawyer was very good at discrediting the witnesses. Another reason was because the crown prosecutors built their case around incidents that happened about a decade before the trial, and human memory can’t remember events from so long ago with consistency, accuracy, and detail.

But his not-guilty verdict was taken, by some folks who yelled at me on Twitter about it, as proof that he was actually totally innocent of everything. There’s a popular perception that a criminal trial unveils the truth. Well, it doesn’t quite do that.

Criminal trials do not have the goal of uncovering the truth. The goal of a criminal trial is sending someone to prison . A prison sentence is the end, and the criminal trial is – in a democratic state’s legal system – the only possible means. Truth is related to this process, but only instrumentally.

Instrumentally to two degrees of abstraction. One – the trial is an instrument to inflict a prison sentence. Two – establishing the truth to a particular standard of certainty is an instrument to a successful criminal trial.

Now, sending someone to prison is a pretty serious thing. Prisons are not nice places, and they probably never will be, no matter how dedicated to restorative justice a society becomes. Prison is the most terrible place a democratic society can send someone without the death penalty.*

When OJ Simpson went to prison for robbery in 2008, I don't think
anyone commented on the irony that after being falsely brought to
trial for murder, he went to prison for this. No, we all know OJ
killed his ex-wife and her boyfriend, and we saw him beat the rap.
Yet MRA types today will never accept that Ghomeshi actually
sexually assaulted and harassed a bunch of women, because being
found not-guilty proved his total innocence.

* Itself kind of a debatable question.

So if you want to take prison as seriously as you say you do, as a democratic society, you’ll make the standard of proof to send someone there enormously high. I’m not just talking about the reasonable doubt standard, though that’s one very high standard.

In the Western legal system, we define our crimes according to specific acts carried out at specific times. You apply your standard of reasonable doubt to whether the prosecution can prove whether a particular event unfolded exactly as their account said it was.

A prosecutor has to describe and prove true a narrative of that event so detailed that very, very few humans’ memories can provide it. No one remembers the exact time and precise order of events of everything that happens in our lives.

An assault victim must consider every detail of the assault – “You’re certain that it was his right hand coming for your jaw? Your jaw first?” – as it happens, timing it at least to the minute. Human memory can’t function that way in the adrenaline of facing aggressive physical assault.

To avoid inflicting prison on those who don’t deserve it, the standard of evidence to convict someone for a sentence is monstrously high. But a not-guilty verdict only means that no one could meet quite that standard of evidence.

It’s perfectly consistent to know that someone did it – for everybody to know they did it – and for him to get a not-guilty verdict. The phrase is, “That asshole got off.” Remember?

Just Another Good Law-Abiding Citizen, Research Time, 29/11/2013

When I was working on my doctorate at McMaster, the department began hosting yearly conferences in legal theory. This was part of Wil Waluchow’s chair in legal philosophy: he had a regular endowment to sponsor a yearly conference and bring in guest speakers to discuss various issues in the theory of law. 

At the conference a couple of years ago, Ken Himma was one of the delegates, and his presentation discussed an idea that I was very glad to hear was taken seriously at least sometimes. In my experience working and getting to know the legal theorists among McMaster’s faculty and students, it seemed that one point was always taken as a basic given: that a prerequisite to there being a legal system at all is a duty of all citizens to obey the law. The literature on civil disobedience was largely focussed on finding the conditions in which the duty to obey the law no longer applied. The examples often referenced were always rather extreme; violations in law of basic points of justice, like Jim Crow and the Nazi regime. Himma’s presentation questioned whether there was a duty to obey the law at all.

I found it so refreshing. There are a lot of complicated ideas in legal theory about the relation of law and morality that it’s difficult to plow through the details of it. The distinctions seem to get smaller and smaller. First learning about the field through my interactions with Waluchow and his students, I now know the traditional Hart-Fuller debate and Hart-Dworkin debate, the Inclusive vs Exclusive legal positivism debate, each of which set the conditions for how North American legal theory has developed, well enough to teach them.* Even so, one of my methods of teaching them would be to focus on just how minor the differences between many of the sides really are. One commonality among all these sides was the premise that because the law was law, you had a duty to obey it that could only be broken in extreme circumstances.

* While exposing myself to the central works of this tradition through interaction with North America’s leading legal theorists at these conferences, teaching introductory courses on the subjects as a tutorial leader, and going through the central books of the tradition, I don’t keep up with the new legal theory scholarship in enough detail to publish on it at the moment. For one thing, I find the official style of discussion too confrontational, and almost nitpicking in its attention to detail and its conceptual distinctions that seem more fine than reality itself. For another, for a university with a very well-endowed chair in legal theory, McMaster keeps very few legal theory journals in their own libraries. The folks I saw using inter-library loans most often for their research material were the legal theorists: philosophy of law journals were all at McMaster’s partner libraries, but rarely its own.

I don’t know how much influence Hannah Arendt on the development of these debates, but I’m not sure if there was all that much. Because one element of her analysis of Adolf Eichmann is that he was the very model of a law-abiding citizen. This analysis also connects clearly to a point from Origins of Totalitarianism, putting another nail to the idea that Eichmann in Jerusalem is a break from the earlier work. In Origins, she described how totalitarian legal regimes function not through legislation (legislation is treated as superfluous in such regimes; for example, Hitler never repealed the Weimar constitution, so even under the Nazi party, Germany still had a federal democratic constitution), but through the expressions of the leader.

Heinrich Himmler desperately hoped to put a respectable
face on Nazi Germany at the end of the war. Note the Death's
Head logo at the centre of his cap. I'm not sure if this plan
had much chance of success.

There’s a section describing how Eichmann, in the last months of the war when Nazi Germany’s defeat was pretty much certain, doubled down on deportations to the death camps. Heinrich Himmler had given explicit orders to slow down and eventually halt the deportations, part of a delusional plan to secure the trust of the Allies. Arendt speculates, based on Himmler’s written official and personal communiqués, that he thought he could secure a negotiated end to the war if they committed just a little less genocide than they actually did. This was also the plan of the old guard of the German army, who actually thought they could hold onto chunks of Poland, all of Austria, and the Sudetenland if they could depose Hitler and put a respectable face on the war.

Yet Eichmann disobeyed Himmler’s orders, because his orders were not the law. Arendt theorized in Origins that totalitarian political theory puts not legislation, but the personal will of the Leader at the origin of laws. Eichmann seems to have understood Arendt’s theory before she had even written it, because he didn’t consider Himmler’s orders to be law. He knew and expressed in his trial that the law of Nazi Germany was the will of the Leader. Because he knew the Leader wanted the death camps to continue action, he sped up his deportations. Hitler’s will was law, and a good citizen follows all the laws of his country.

Eichmann was nothing if not the very model of a good, law-abiding citizen.