Abstract
Even though the notions of guilt and innocence are two of the most important ones for any legal system, there are surprisingly deep and complicated confusions that entangle them. There is much clarifying work to be done here, part of which is to investigate the logical principles governing these concepts. In this paper, I build on Larry Laudan’s analysis in his book Truth, Error and Criminal Law. Though I have great respect for the conceptual lines he draws, I will show that the logical relationships of these concepts is richer than Laudan makes out. In order to do so, I will use one of the oldest aids to logical reasoning, the square of oppositions. The square captures these logical relations well, albeit only with some idealizing assumptions in place. I will go on to argue that these idealizations are in harmony with a useful way to model legal deliberation in constructive logic.
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Notes
- 1.
It is with pleasure that I follow the suggestion of an anonymous referee to mention Susan Haack’s recent [7] as another example of an eminent philosopher taking up legal matters. In contrast to both Laudan’s book and the present paper, she also addresses questions of proof outside of criminal trials, i.e. in private law. An interesting discussion of the difference between the notions of proof in a criminal trial and proof in a civil case is [17], which supplies a quite different analysis of the nature of proofs of guilt or innocence from the present paper.
- 2.
In turn, it is highly interesting to see the reaction of legal scholars to the book. Here is one example: “Enter Laudan, the distinguished epistemologist, training his sophisticated analytical apparatus on the legal system. [...] The result is an insightful, trenchant, exhilarating, bracing, disturbing exploration of the legal system that leaves no doubt that factual accuracy could be pursued considerably more ruthlessly, and that Laudan thinks it is a reproach to the legal system that it does not do so.” [1], p. 199. It is intriguing, and maybe somewhat worrying as well, that the author of that review is not inclined to agree with Laudan on the last point.
- 3.
See http://www.defendingoregon.com/innocent-v-guilty/, last accessed on July 5th 2017.
- 4.
Reference [10], p. 99.
- 5.
A note on pronouns: When they refer to unspecified persons (which, as it happens, is only the case when I talk about defendants), these will be male in odd numbered sections and female in even numbered sections.
- 6.
There is “acquittal” but that carries a factual commitment to the actual outcome of a trial that I think neither is nor should be part of the meaning of “guilty”, and should therefore not be part of the meaning of a candidate antonym either.
- 7.
Reference [6], p. 122.
- 8.
Apart from many uses of the terms by members of the legal profession that showcase the same ambiguity that common use does, the distinction is also used in other, quite different senses. Sometimes is used to mark a difference in culpability of the defendant. Here, the idea is that, even though someone may not be “innocent” because he in fact has done what the prosecution claims, he may indeed be “not guilty”, because he did not act voluntarily (cases of insanity or hypnosis might fall under this category) or in self-defense. It seems clear that it would be better to have different terminology to mark this distinction, but I will for the most part ignore this usage and the cases that give rise to it in this paper.
- 9.
Though Laudan does not discuss the above problems with expressibility, his solution meets them admirably.
- 10.
Notation altered. Laudan abbreviates his new notions with subscripted p’s and g’s, as in “guilt\(_{\text {p}}\)”. This economy maybe pays off in a book length endeavor such as his, but I find the spelled out terms easier to read.
- 11.
See [13] for a history of the square as well as an account of certain problems involving non-denoting terms, which we can safely ignore, as they will not be relevant to the following application.
- 12.
See, for example, [3].
- 13.
As noted above, I put aside cases of self-defense, insanity etc. Putting them back into the picture would complicate things considerably (but not impossibly). The trouble is not just terminological, but is rooted in different standards of proof and distributions of the burden of proof attached to such cases. I will go on to show that these matters have a profound influence on the logical relationships between the concepts.
- 14.
I will briefly come back to the standard of proof below; for an in depth exploration, see Chap. 3 of Laudan’s book.
- 15.
‘Tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent. Voltaire (1749).
It is better that five guilty persons should escape punishment than one person should die. Matthew Hale (1678).
It is better that ten guilty persons escape [punishment] than that one innocent suffer. William Blackstone (eighteenth century).
I should, indeed, prefer twenty guilty men to escape death through mercy, than one innocent to be condemned unjustly. John Fortesque (1471).
It is better a hundred guilty persons should escape than one innocent person should suffer. Benjamin Franklin (1785).
It is better . . . to acquit a thousand guilty persons than to put a single innocent man to death. Moses Maimonides (twelfth century) [10], p. 63.
- 16.
Laudan himself has some doubts, and legal scholar Daniel Epps has just published a thought provoking all out attack on the idea in the Harvard Law Review ([5]). He argues that it is a remnant of a time in which capital punishment was the only possible outcome of a trial that found defendants guilty of major crimes, and that it has outlived its social utility in a time when most verdicts are of a more reversible nature.
- 17.
This distribution of the burden of proof is as basic as a legal principle can get. Nonetheless, the British government recently gave out an information brochure that managed to get this basic point exactly backwards. See http://www.independent.co.uk/news/uk/home-news/ministry-of-justice-gets-law-terribly-wrong-in-its-guide-to-courts-10016086.html, last accessed on July 5th 2017.
- 18.
In many states of the U.S., this shift of the burden of proof was legislated after a famous assassination attempt on president Reagan in 1982. The attacker’s plea of not guilty on grounds of insanity was successful, not because he could prove his insanity, but because the prosecution could not prove his sanity. After this unpopular outcome, many states changed their laws so that a man or a woman in similar circumstances would be convicted.
- 19.
Mark the name of the principle, for a start. If Duvall had been right and innocence had (obviously to legal professionals) nothing to do with the job of the jury, then why should the jurors presume something that is patently unrelated to their task? Of course, this may once again only be an allowance to accidental features, this time the above noted lack of a lexicalized noun form of “not guilty”. The “presumption of not-guiltiness” might well have been too clumsy for the legislators, but to suppose that they willingly introduced an intense confusion into a clear conceptual outlay just because they could not find a proper way to express themselves seems a bit too drastic. Unlike journalists, legal professionals should have been unwilling to pay such a high price.
- 20.
Among other things, we need to assume that the members of the jury understand the instructions (not as trivial an assumption as one might have thought, as the issues in this paper testify) and are able to draw the right conclusions from the evidence. Also, even purely veridical evidence can point in the wrong direction, if it is of the circumstantial sort and not counterbalanced by evidence for the innocence of the defendant.
- 21.
If we idealize away restrictions of quantity of evidence as well, then we only end up with two corners: If we assume not only that all evidence is veridical, but that we can collect all such veridical evidence pertinent to the case, then material guilt and probatory guilt will come to the same thing, as will material and probatory innocence. This “line of guilt and innocence” might be a blisteringly naive conception, but it is both an idealization and an ideal: It leaves out real-world complications, but it can serve as an epistemic ideal that we should set our legal institutions up to strive for. The square of guilt and innocence, in contrast, cannot, on its own, be said to embody such an ideal: It is quite easy to set up a legal institution that satisfies all the relations shown in the square: One that allows no evidence at all to be considered by the judge or jury and that leaves the burden of proof on the prosecution. It seems clear that this institution isn’t even aiming at what it should. To make it a viable ideal, we should also stipulate that the state should make a serious attempt to find facts pertinent to the case and bring them to the attention of the court, and that this effort should not be (overly) thwarted.
- 22.
See Ref. [9].
- 23.
One referee remarked that the application of a constructive logic to the problem at hand is a rather obvious one. I was glad to read that, hoping that “obvious” implies “plausible”. That said, I have not seen the application of a constructive logic to legal epistemology in print before, let alone the system I will propose below. Intuitionistic logic is discussed in [14]; however, the topic is not evidence but rather the nature of legal rules.
- 24.
- 25.
Or “worlds”, for those who are more accustomed to such talk.
- 26.
This is in contrast to the semantics of intuitionistic logic, in which one of the values marks the constructive notion, mathematical proof, and the other the mere absence of that notion.
- 27.
I use, as in [9], \(\vDash _{hyb}\), for “hybrid consequence”, to denote this consequence relation.
- 28.
One may wonder whether the information recorded in \(\varDelta \), which is essentially information about unfalsified statements, could be relevant at all if the conclusion has to be verified. Indeed, it does make a difference, as the following example will show. Let \(A\vee B\) be the only element of \(\varGamma \), and \(-B\) the only element of \(\varDelta \). Then we will find that \(\varGamma \mid \varDelta \vDash _{hyb}A\mid \ \ \), while \(\varGamma \mid \ \ \nvDash _{hyb}A\mid \). Intuitively speaking, the burden of proof-bearing speaker who correctly asserted \(A\vee B\) had to have either a verification of A or a verification of B. The latter case is excluded by the fact that someone else, not bearing the burden of proof, was able to utter \(-B\).
Another matter worth mentioning is that the semantics, as it stands, allows for \(A\wedge -A\) to be unfalsified. The rationale for that is just analogous to the reasoning that leads intuitionists to reject the validity of \(A\vee -A\). To prove a disjunction, on the constructive view, you need to be able to prove one of the disjuncts. Likewise, on the view proposed here, to falsify a conjunction, you need to be able to falsify (at least) one of the conjuncts. Of course, to lead a party to contradict itself is a powerful move in legal discourse, no matter whether that party has to bear the burden of proof at the moment or not. That means that we should have a means of recognizing self-contradictory statements as defective in the logical system. Chap. 9 of [9] contains a mechanism for doing just that.
- 29.
The logic that is suitable for the material level might well be classical logic, or whichever logic one deems suitable to deal with facts about criminal events.
- 30.
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Acknowledgements
This research was financed by the research project ‘‘New Logics for Verificationism’’ PI 1082/1-102288852134 funded by the German Research Foundation. The paper has benefited form comments by two anonymous referees, Georgios Karageorgoudis and the audience at the fourth world congress on the square of oppositions, held in 2014 at the Vatican. I would like to express special thanks to João Marcos and Lothar Philipps. Prof. Philipps sadly passed away recently, and I would like to dedicate this paper to his memory.
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Kapsner, A. (2017). The Logic of Guilt, Innocence and Legal Discourse. In: Urbaniak, R., Payette, G. (eds) Applications of Formal Philosophy. Logic, Argumentation & Reasoning, vol 14. Springer, Cham. https://doi.org/10.1007/978-3-319-58507-9_2
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