Footnotes to Plato from the foothills of the Superstition Mountains
The very idea of a 'hate crime' is an absurdity to anyone who can think clearly. Is this why it is so beloved of the Left?
Hats off to Hentoff for a fine explanation in this 5:56 minute YouTube video of what is so wrong and dangerous and unconstitutional about 'hate crime' legislation.
Georg Christoph Lichtenberg, The Waste Books, tr. R. J. Hollingdale, New York Review Books, 1990, p. 101:
Certain rash people have asserted that, just as there are no mice where there are no cats, so no one is possessed where there are no exorcists.
Lichtenberg's observation puts me in mind of anarchists who say that where there are no laws there are no criminals. That is not much better than saying that where there are no chemists there are no chemicals.
Just as there are chemicals whether or not there are any chemists, there are moral wrongs whether or not there are any positive laws* prohibiting them. What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law. It is morally wrong before (logically speaking) it is legally wrong. And it is precisely the moral wrongness of murder that justifies having laws against it.
And yet there is a sense in which criminals are legislated into existence: one cannot be a criminal in the eyes of the law unless there is the law. And it is certainly true that to be a criminal in the eyes of the law does not entail being guilty of any moral wrong-doing. There are senseless, incoherent, and unjust laws.
But the anarchist goes off the deep end if he thinks that there is no moral justification for any legal prohibitions, or that the wrongness of every act is but an artifact of the law's prohibiting it.
As I like to say, anarchism is to political philosophy what eliminative materialism is to the philosophy of mind. Both are 'lunatic' positions. But 'lunacy' has its uses. It is instructive in the way pathology is. We study diseases not to spread them, but to contain them. We study diseases of the mind not to promote them, but to work out the principles of intellectual hygiene.
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*Positive laws are those posited by a legislature. See here:
In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature. As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.
UPDATE (1/24). Tom Anger comments:
What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law. It is morally wrong before (logically speaking) it is legally wrong.
[N]atural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.
From a Cato Policy Report:
. . . Alan Dershowitz discusses his time litigating cases in the old Soviet Union. He was always taken by the fact that they could prosecute anybody they wanted because some of the statutes were so vague. Dershowitz points out that this was a technique developed by Beria, the infamous sidekick of Stalin, who said, “Show me the man and I’ll find you the crime.” That really is something that has survived the Soviet Union and has arrived in the good old USA. “Show me the man,” says any federal prosecutor, “and I can show you the crime.” This is not an exaggeration.
And now Donald J. Trump, the legally elected president of the United States, is the man. To prosecute someone for a crime, some crime has to be alleged. But in this case what is the crime? Alan Dershowitz raises the question and answers it: there is no crime.
There is no evidence that Trump or his team colluded with the Kremlin to swing the election in Trump's favor. But even if there were, such collusion would be at worst political wrong doing, not a crime. This is not my opinion but the opinion of a distinguished Harvard law professor who is not a Trump supporter. As Dershowitz told Tucker Carlson last night, "I voted for Hillary Clinton very proudly."
Around 3:10 Dershowitz speaks of "hacking the DNA" several times. He means: hacking the DNC, the Democrat National Committee. Carlson failed to catch the mistake.
I now want to make a point that Dershowitz did not make last night, namely, that phrases like 'hacking the election' have no definite meaning. You can literally hack into John Podesta's e-mail account, but you can't literally hack an election. (It has been claimed that the password he employed was 'password.' Could Podesta be that stupid or careless? I am skeptical.) Of course, you could use 'hack an election' to mean 'influence an election,' but then you will have changed the subject. Almost all of us, from low-level bloggers to the most august pundits, were trying to 'hack the election' in the sense of 'influence the election.'
What we have here with the appointment of special prosecutor Robert Mueller is not an inquiry into whether a crime has been committed, but a witch hunt: a search for a nonexistent crime to pin on a much-hated man.
But didn't Trump obstruct justice by firing Comey? Is that not what is maintained by such powerful intellects as Maxine Waters and Nancy Pelosi? Of course not, as Dershowitz points out at 3:38 ff. Trump's firing of Comey was well within the president's constitutional rights. "Under the unitary theory of the executive, the president has the right to direct the justice department." I would add that the president fired Comey for good reason.
No doubt the 'optics' were bad: the firing looked self-serving. So the haters pounced suggesting that the only reason Trump fired Comey was because Comey was about to expose criminal acts by Trump. But that is just nonsense. Again: which criminal acts?
Even if Trump was sick of Comey and wanted him out for personal motives, he had solid impersonal legal reasons for firing him. They were set forth in the Rosenstein memorandum.
The Trump haters appear to be committing a version of the genetic fallacy. The psychological motivation of a claim or action is irrelevant to the question of the truth of the claim or the justifiability of the action. Had Hillary or Bernie or Jill or Jeb! been president, each would have been justified in firing Comey. Again, this is because of the availability of solid impersonal legal reasons for his firing. And you can bet all of Hillary's ugly pant-suits that she would have fired him had she won as she was 'supposed to.'
Here:
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role.
The day before yesterday I wrote,
In a criminal case the probative bar is set very high: the accused has to be shown guilty beyond a reasonable doubt. Here too there seems to be a legitimate appeal to ignorance: if it has not been shown that the defendant is guilty beyond a reasonable doubt, the conclusion to be drawn is that he is not guilty.
We will have to examine this more carefully in a separate post.
Herewith, the separate post. Plainly, the following is an invalid argument:
1. It was not proven beyond a reasonable doubt that it was Smith who killed Jones.
ergo
2. Smith did not kill Jones.
Examples like this appear to support the idea that some appeals to ignorance (or arguments from ignorance) are reasonable and non-fallacious. According to Douglas N. Walton,
. . . the criminal law presumes that a person is not guilty if he has not been shown to be guilty. This is an ad ignorantiam form of argument, but it can be reasonable in the context of the rules of argument in the criminal law. (Informal Logic: A Handbook for Critical Argumentation, Cambridge UP, 2007, 20th ed., p. 47)
I wonder if this is right. Which better represents a criminal process that terminates in an acquittal? Is it the above argument or the following argument?
1. It was not proven beyond a reasonable doubt that it was Smith who killed Jones.
ergo
3. The presumption of Jones' innocence has not been defeated and Jones is in the eyes of the law not guilty.
I now think it is the second argument. But note that (i) the second argument is valid, and (ii) there is no appeal to ignorance in the second argument. The validity of the second, enthymematic, argument is obvious when we make explicit the tacit assumption, namely, that
4. If the accused in a criminal proceeding has not been proven to be guilty of the crime with which he is charged beyond a reasonable doubt, then the presumption of innocence has not been defeated and the accused is in the eyes of the law not guilty.
So the second argument is (formally) valid. It also does not represent an appeal to ignorance. One is not arguing that: Jones is not guilty in reality (as opposed to in the eyes of the law) because it has not been proven that he is not guilty. One is arguing that the presumption of innocence has not been defeated. The following are different propositions:
a. Jones is not guilty
b. Jones' presumption of innocence (POI) has not been defeated.
It ought to be obvious that they are different. They are logically independent. Each is consistent with the negation of the other. Thus the following sets are consistent dyads: {Jones is guilty; Jones' POI has not been defeated}, {Jones is not guilty; Jones' POI has been defeated}.
Conclusion
According to Walton, ". . . the criminal law presumes that a person is not guilty if he has not been shown to be guilty. This is an ad ignorantiam form of argument . . ." I think this betrays a misunderstanding of the notion of presumption, and in particular, presumption of innocence.
The presumption is not that a person is not guilty if he has not be shown to be guilty; the presumption is that he is to be treated as if not guilty, if he has not been shown to be guilty. In the case of O. J. Simpson, almost everyone agrees that he is guilty of murdering Nicole Brown Simpson and Ronald Goldman. Yet he was found not guilty. Obviously, there is a difference between being not guilty (being not guilty in fact) and being found not guilty (being not guilty in the eyes of the law). The presumption of innocence was not defeated in that trial. But that is consistent, as I argued above, with the accused's being guilty.
It is therefore a mistake to think that the POI procedural rule embodies an appeal to ignorance. And since there is no appeal to ignorance here, there is no reasonable or non-fallacious appeal to ignorance.
UPDATE: Dave Bagwill writes,
My grand-dad did not mince words, nor did he suffer fools. When I tried to trick him with verbal technicalities, he would accuse me of "trying to pick the fly shit out of the pepper".
He would have said that about your latest post 'On Ad Ignorantiam and the Law', but he would have been wrong. You made some very fine, fine distinctions in that post that really cut to the heart of the matter. Thanks, and well done. (I've used that book by Walton for years and generally found it useful.)
You're welcome, Dave. My response to your grandfather would be to make yet another distinction, one between hairsplitting and the drawing of necessary distinctions, and then distinguish different kinds of hairsplitting.
One sort of hairsplitting is to make distinctions that correspond to nothing real, distinctions that are merely verbal. The 'distinction' between a glow bug and a fire fly, for example, is merely verbal: there is no distinction in reality. A glow bug just is a firefly. Similarly there is no distinction in reality between a bottle's being half-full and being half-empty. The only possible difference is in the attitude of someone, a drunk perhaps, who is elated at the bottle's being half-full and depressed at its being half-empty.
But this is not what people usually mean by the charge of hairsplitting. What they seem to mean is the drawing of distinctions that don't make a practical difference. But whether a distinction makes a practical difference depends on the context and on one's purposes. The truth of the matter is that there are very few occasions on which the charge of hairsplitting is justly made. On almost all occasions, the accuser is simply advertising his inability to grasp a distinction that the subject-matter requires.
Walton may be the premier writer on informal logic. His book is apparently well-thought-of. 2007 saw the 20th edition. I'd guess there have been editions since then.