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Friday, June 10, 2011


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Would he hold more generally that to be is, not to be known (to be), but to be believed (to be)?


First of all, may I say what a pleasure it was to foregather with you and Cary and Peter and Mike at Cindy’s roadhouse. A decent breakfast venue to be sure, but too bad the PussyKat Lounge wasn’t open on Sunday morning so we could simultaneously indulge some other “philosophical” vices.

I believe you’ve slightly misunderstood with position—mea culpa—which was primarily a point of language or usage. “Guilt” and “innocence” have become terms dominated by their legal senses, and it is at the very least confusing to use them with equivocal meanings in the same sentence with older meanings. You can certainly say something like “it is better than a guilty man go free than an innocent man…”, but I and many other people will hear that as a statement about someone who has been convicted (found guilty) but on appeal has won a dubious reversal. If you mean a man who didn’t in fact commit the crime he is charged with, then it is much clearer if you say this! Or at the very least put “guilty” in scare quotes, so we know you don’t mean it in the standard legal sense. I see no reason why guilty people should go free, unless on new evidence it can be shown that they are not “guilty”, that is, they didn’t commit the crime they were convicted of.

In the predominate legal sense of “guilty”, “found guilty” means “is guilty” unless a subsequent appellate action has overturned the verdict. Similarly for “is innocence”. OJ is innocence of killing his wife and Ron Goldman, though maybe he did it. A botched prosecution and a superb defense established his innocence. This doesn’t mean (1) he didn’t do it, and (2) he isn’t civilly liable for his wife’s death (on a weaker evidential standard), and (3) in some moral sense his behaviour isn’t blameworthy. But please don’t confuse everything by saying he’s guilty of the murders. He isn't!

A different point. Suppose I am Ron Goldman’s father and I watch the LA prosecutors bungle the criminal case against OJ, and I subsequently win an uncollectible civil verdict against OJ. I decide that it is not right that OJ will not walk away from these murders. I arrange for OJ to be killed (knifed to death). The police come to me and say “we know you did this”. I say to them “Know what you know. I gave the law every chance, but the law failed to do justice in this case. Your incompetence let a killer walk. Now you propose to prosecute me! Just try to prosecute me for this killing and my lawyers will make the incompetence and corruption endemic in your department headlines for months.” The police go away, knowing they are overmatched. Did I murder OJ? NO. No jury ever convicted me, no grand jury even indicted me with murder. Am I “guilty” of killing OJ? This is moot and idle point to be debated uselessly by philos. I did what I deemed right.


Was a pleasure having you at Cindy's Breakfast Club. Hope you become a regular. (Correct spelling of the lady's nickname-'Cari').

The following question you must answer Bill: Do you accept the distinction between the following two kinds of facts pertaining to the relationship between an act and the prevailing laws:

(1) Legal Fact: A fact consisting of an act that is in violation of the prevailing laws and is independent from, and prior to, the outcome of a court proceedings;

(2) Legal Verdict: A legal decision that is the outcome of an official court proceedings.

Those among us who accept this distinction accept that there are legal facts that are independent from the verdict that is the outcome of a court proceedings. Thus, it may be a fact that a man's actions violated laws even if no court proceedings have taken place. Hence, such a man is guilty of violating the law quite independently from whether or not he was *found guilty* by a court of law. The purpose of the later, if such proceedings take place, is to find out whether a antecedent legal fact of the sort described indeed occurred. According to this view, there is a distinction between the existence of legal facts (metaphysics) and our knowledge of their existence (epistemology).

On the other hand, if you reject the distinction, then it is unclear to me what is the purpose of a court proceedings. Surely, you do not think that its purpose is to retroactively *create* a prior legal fact.

I think that you reject the distinction between (1) and (2). I also suspect that your rejection of the distinction is motivated by a philosophical position that tends to conflate metaphysical matters with epistemological ones. Thus, you wish to avoid commitments to legal facts prior to a court decision (i.e., (1)).

Moreover, you may be thinking that since a system of laws is created by convention, all subsequent legal matters must be viewed as conventional as well. But no such inference is justified. It is a conventional matter that in this country one drives on the right side of the road. However, given this convention, it is a fact that on such-and-such an occasion a person violated this convention and drove on the left side without the authority to do so.

Hi Peter,

Thank you for the kind words. My apologies to the lady for the misspelling.

You have set out the issue with admirable clarity. Yes, I do hold that there is no legal fact respecting guilt or innocence before a verdict. Let explain why with an actual case (we touched on this last Sunday).

An Arizona woman is knocked unconscious by a gang of juveniles breaking into her house. As the gang is leaving with her valuables, the woman recovers consciousness, grabs a gun, and opens fire. The gang runs out her house and slams her front door. The woman continues to shoot at the fleeing gang through the closed door. Her last round hits one of the gang just as reaches the street and kills him.

Peter, is this woman “guilty” of manslaughter or some other form of criminal homicide? There is the undisputed fact that she shot someone in the manner described and he died. There are those facts and then there are legal facts about what Arizona law says about using deadly force. One statute permits the use of deadly force in self-defense if a reasonable person would consider it necessary to protect oneself or another. Self-defense seems somewhat dubious in this case, don’t you think? There is another statute, though, Arizona Revised Statutes 13-411 to be specific, that allows citizens to use deadly force to stop certain named felonies in progress. One named felony is the burglary of an occupied residence. So, IF, and this is a big IF, the woman shot the fleeing juvenile to stop a burglary still in progress, then 13-411 says the homicide was justified. But the facts in this case are unusual. There is no clause in 13-411 about shooting through a closed door at burglars who are trying to flee. Does or doesn’t 13-411 apply here? We need a decision, because at this point there no legal fact about whether 13-411 justifies the homicide. There is no fact respecting the woman’s “guilt” or “innocence” of anything. She is not even “presumed innocent” until she has been charged with something.

In this case the decision didn’t come from a judge or jury. The police and local DA investigated and didn’t even present the case to the grand jury. They decided it was a righteous shooting and that was the end of it. They DECIDED that she had no criminal liability.

I think what you believe or hope, Peter, is the undisputed facts plus the applicable criminal code (ARS in this case) somehow entail the guilt or innocence of a person who done something addressed in the law. The laws plus the facts don’t entail any such thing. Statutory law can’t cover all cases, as in the present example. Statutory laws are also full of conditions and exceptions that are expressly left to judges and juries to decide. There is even considerable discretion left to the police and DA and grand juries to DECIDE whether someone should be charged with a crime, and if so, what crime. Before all these decisions are made, or in their absence, there is no “legal fact” respecting someone’s guilt or innocence.


Very nice response. While Bill did an admirable job at stating the terms of the debate, I think we should stake out the positions clearly before we can examine their respective merit. Let me know whether you agree to the forthcoming statements.

(A) Positions:

1) Legal Realism (LR): LR holds that there exist *some* legal facts independently from, and prior to, any legal *procedures* such as a decision by the police to press charges, the DA to proceed with a prosecution, and the outcome of a court's decision.

A *legal fact* shall be defined as a fact constituted by an act together with the prevailing laws. A *positive* legal fact is a legal fact such that the act in question violates the prevailing laws; a *negative* legal fact is a legal fact such that the act in question fails to violate prevailing laws.

According to LR the purpose of a *legal procedure* (e.g., a court's proceedings in a particular case) is to find out or discover whether a certain act constitutes a negative or a positive legal fact (and if so, issue appropriate punishment or remedy).

2) Legal Positivism (LP): LP holds that there are *no* legal facts (positive or negative) antecedent to one or another legal *procedure*, in particular the proceedings of a court. *All* legal facts are constituted by whatever it is the outcome of a legal procedure.

The purpose of a legal proceeding is to determine whether a certain act, under a non-legal description, constitutes a violation of any prevailing laws. Since prior to the determination of the legal proceeding the act in question, so described, does not constitute a legal fact, prior to such a determination no legal fact exists. A legal fact *comes into being*, or *emerges*, based solely upon the decision of the court's proceedings.

(B) It should be clear from the above statements that LR is false just in case there are *no legal facts*: i.e., just in case it is not the case that any pair of an act together with prevailing laws constitutes a positive or a negative legal fact.

Thus, in order to defeat LR it will not be enough for you to cite an example whereby some act together with any prevailing laws fails to constitute a legal fact (positive or negative). You need to show that any combination of an act and prevailing law fails to constitute a legal fact prior to a legal proceedings.

So even if we accept your example as a case that supports LP, you have not thereby refuted LR. However, the example you cite raises a fundamental question worth entertaining: Is LR committed to the principles of bivalence and excluded middle regarding legal facts? I think that the debate between LR and LP requires addressing these questions, as well as questions about the role of precedence in determining legal facts, constitutionality, etc.


Like Peter, I see you as conflating epistemological questions with metaphysical ones. As I see it, there are objective facts as to what the law prescribes and proscribes in a certain jurisdiction. And there are objective facts about a citizen's behavior in that jurisdiction. There are furthermore objective facts about whether one is breaking some law or not. Obviously, one can be a convicted felon and never have committed a felonious act. And one can have committed felonious acts without ever having been a convicted felon.

It is plain facts like these that your account cannot accommodate.

And as Peter has pointed out in other words, if there is no fact of the matter as to whether or not Jones has committed a certain crime that he is alleged to have committed, then what is the point of the courtroom proceedings? The whole point is to get to the truth of the matter as best we can in a timely manner.


Being generous, I could just grant you your use of 'guilty' to mean 'found guilty in a properly conducted court of law' and 'innocent' to mean 'acquitted of a crime in a court of law.' Then I could make my point as follows: to be guilty is not to be guilty in reality; to be innocent is not to be innocent in reality.

What matters is the distinction, not the verbiage in which we clothe it.


The case you present above is very interesting but I would say it is a red herring: it distracts us from the issue that divides us. I will of course concede to you that the law cannot be formulated to cover every possible situation. It cannot e.g. enumerate all the cases in which shooting through a closed door is justified and those in which it is not. So I agree that it is not clear whether 13-411 applies or not. We need a decision. And so I agree that there is the fact of a homicide caused by the woman, and there is the fact of what 13-411 states, but there is no fact as to whether or not 13-411 justifies the homicide. I think you are right about that, and it is a good point.

Therefore, there are cases in which the facts about the law plus the facts about behavior do not determine whether or not the agent is guilty of violating the law.

That being granted, it is nonetheless true that there are clear cases, cases in which the facts about the law plus the facts about what the agent does or leaves undone do determine whether or not the agent is in violation of the law. All Peter and I need are one or more cases like this.

For your view, if I have understood it, is that even in these clear cases it is the courtroom decision that makes the agent guilty or not.

So I suggest your example is a red herring. You make a good point about the need for decision in certain unclear cases (cases where the law itself is indeterminate) but then you illictly slide to the view that somehow there is no fact of the matter as to guilt or innocence.


You an I agree that Philoponus' example cannot show that Legal Realism (LR), the way I defined it above, is false. This is so for the obvious reason that LR maintains that there are at least *some* objective legal facts. Therefore, refuting this position requires showing that no such facts exist. Clearly, pointing to one example cannot do that.

However, Philoponus' example does require the proponents of LR to state whether they accept the principles of bivalence and the excluded-middle regarding legal facts. Moreover, the proponents of LR need to articulate a clear position as to how legal precedents determine legal facts, if they do, and how legally indeterminate cases (such as the example Philoponus gave) at a given time become determinate subsequently based upon a legal decision and, thus, are converted into a precedent.

I think that Philoponus' example does put these burdens upon us LRs.


I agree with your last comment.

Here (http://www.iep.utm.edu/legalpos/) is a good precis of legal positivism:

>>Legal positivism is a philosophy of law that emphasizes the conventional nature of law—that it is socially constructed. According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law.

Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.<<

I suspect Phil is a legal positivist by this definition. But unless I am confused, the point you and I are making contra Phil does not presuppose the falsity of legal positivism. Of course, you and I both reject legal positivism, but that rejection is no part of our opposition to Phil.

It seems that a legal positivist could admit that there is a decision-independent fact of the matter, at least in some cases, as to whether or not a person is in violation of a law, and that, therefore, it is not the courtroom decision that constitutes his being in violation or compliance with the law.

If I am right, then your understanding of 'legal positivism' as curently employed is defective.


You have cited the traditional notion of legal positivism which pertains to the conventional basis of the law itself. This position is compatible, as you point out, with the view that given the law, however it has been determined, there are legal facts independent from a legal procedure about whether a particular act is a violation of the law so instroduced.

However, Philoponus goes beyond this form of legal positivism about the sources of the law itself and maintains that the question of whether an act violates the law is itself a matter of a decision by a legal procedure. Hence, Philoponus' position is even more radical than traditional positivism. I called his position 'Legal Positivism' in order to construct it with realism about the question of legal facts.

So you are right that the traditional notion of 'legal positivism' is typically restricted to the question about the nature of the sources of the law. So perhaps Philoponus' position can be labeled 'Radical Legal Positivism', for he also maintains that specific acts have a legal status only when a legal procedure determines their status.


Consider the following case.

Suppose one wishes to know whether idly standing in a street corner of the city after midnight violates a city ordinance (I actually heard that such an ordinance exists in Phoenix metropolitan area, but it is enforced primarily during large and potentially disruptive concerts).

According to your position, what the inquirer really wishes to know (whether or not they so state it) is the following counterfactual:

(*) If I were to be charged in a court of law with idly standing in a street corner after midnight, would the judge determine that I violated the law.

According to me (and I suppose Bill), the inquirer wishes to know the following current fact:

(**) Does the act type--idly standing in a street corner after midnight--violates the law at the time of the conduct?

The problem with (*) is that there is no answer to such a counterfactual prior to a judge's decision in a legal preceding. Hence, the law by itself and independently from a court's decision on a particular case fails to guide conduct. On the other hand, a clear answer to (**) can easily guide conduct. But, surely, we want our laws to guide our conduct in the sense of telling us whether a particular act type is a case of violating the law so as to act in a manner that avoids violating the law, being charged with such a violation, and being involved in a legal preceding.

I think our legal realism has the advantage of viewing the law as guiding conduct, whereas your view fails to do so.

Hi Bill,

First of all, thank you and Peter for your thoughtful remarks.

I was uncertain when you introduce the term at Cindy’s and now I know I must resist being called a “legal positivist”, according to the complex characterization you give of the position above. All I’m doing, I want to say, is making a simple point of logic or inference, namely, that you cannot deduce anything respecting the guilt or innocence of an agent from the applicable statutes and facts about what the agent did. This is true in the case of any and every alleged criminal offense, because there are levels of discretionary decision making that belong to the legal process by which any criminal complaint is introduced and adjudicated. Decisions, judgment calls, have to be made by police and DAs and grand juries and judges and juries about whether a crime occurred. Without a series of decisions to prosecute the matter as criminal, there is NO crime. You seem to think there are “clear cases” in which we can deduce someone’s criminal liability. Please give me one example. Any crime at all. I don't think you can produce any such examples.

You say the homicide case I cited is exceptional because it is clear ARS 13-411 did not envision the circumstances that occurred in that case. I could say that most serious criminal cases raise similar “intent of the law” issues depending upon the defense they employ, but let me offer you a very simple example in which the statutory background in undisputed. We have in the law certain so-called “strict liability” offenses in which what the agent knew or intended doesn’t matter. No mens rea need be proved. Speeding in most US jurisdictions is a strict liability offense. If you were exceeding the posted speed limit, it doesn’t matter whether you intended to speed or wanted to speed or knew you were speeding. None of these defenses apply. So if you were going 55 mph in a zone posted for 40 mph, and police have a radar report of your speed, and you in fact admit you were going 55 mph, can’t we deduce you are guilty of speeding prior to any further legal process?

No, we cannot. I was once in exactly these circumstances, ticketed for going 55 mph in a construction zone. I took some pictures of the “crime scene” and took them and my ticket to the local JP court on the appointed night. A young Asst DA was running the court that night and asked me incredulously how I was going to fight a speeding ticket. I gave him my photos which showed that the single temporary 40 mph sign was virtually invisible when work vehicles were parked as they were that night. He thought about it a minute and said “Ok, forget it, go home.” He dismissed the case in what lawyers like to call “the interests of justice”. Note that this was a discretionary call on his part. He could have said “tough luck, old boy” and prosecuted and won a conviction. “Virtually invisible” is not a defense the JP had any obligation to accept.

Even in a case as simple as this, the laws plus the facts do not entail any verdict about guilt or innocence. The traffic officer had to write the ticket, the DA had to decide to prosecute, and the JP decide to convict. Each of these people had discretion whether to allege or decide that a crime occurred. My guilt or innocence depended upon these decisions and did not exist before or without them.

Hi Peter,
The criminal law can and does strongly guide our conduct without any simplistic entailments from doing x to being guilty of x. Our laws strongly proscribe and probably deter homicide, but we all know there are circumstances that justify or excuse or mitigate homicide. These defenses are necessarily complex and require a long series of discretionary judgments by police, prosecutors, etc. Without these decisions there can be no criminal prosecution and no finding that a crime has occurred.

You seem to think we need to reason like this: Homicide is against the law. I have committed a homicide. Therefore I am guilty of homicide (irrespective of what any subsequent proceeding decides). That is not how the law works! For that kind of inference to work you would need the first premise to proscribe any homicide no matter what the circumstances, but that is manifestly unjust and unacceptable. So there are exceptions that have to be admitted and decisions reached about whether these apply in the particular case at hand. And often the facts are not indisputable, so a series a judgments need to be made there. And the whole legal process must also be workable and fair, so more decisions in the particular case about whether and what prosecution is possible and fair.

From the fact that I have committed a homicide the law allows me to infer that at the end of a careful and lengthy process of investigation and perhaps trial I MAY be found guilty of a serious crime and punished. That certainly is enough to guide my conduct.

Forgive me if I don’t directly address your example of loitering. It is generally treated as an offense and not a crime, and I really don’t know much about how it is prosecuted. But see my example of speeding in the previous post to Bill.

Philoponus seems to espouse a form of legal proceduralism (which I think is an extreme form of legal positivism). I wonder how he understands such verdicts as 'guilty, but exonerated by extenuating circumstances.' This is a very rare sort of verdict, but it does arise when people take a pragmatic view of positive law; i.e., they view legal statutes as dispositive only "for the most part," because the world is too complex to foresee all possible relevant factors when framing the laws.

Thanks for the response, Phil. You write, >>All I’m doing, I want to say, is making a simple point of logic or inference, namely, that you cannot deduce anything respecting the guilt or innocence of an agent from the applicable statutes and facts about what the agent did.<<

Well, if it were a simple point of logic we would have all gotten it by now, right? Don't we all know logic? Haven't we all taught logic?

Suppose we substitute 'guilt in the eyes of the law' for your 'guilt' above, and 'innocence in the eyes of the law for your 'innocence' above. Then you are right. As you point out, decision comes in at different levels from the decision to prosecute, to decisions during a trial, to the jury's decision. No one here denies that.

But now you have simply mislocated (dislocated?) the bone of contention. No one here has claimed that facts about the law plus facts about an agent's behavior suffice to establish the agent's guilt or innocence in the eyes of the law. The point that Peter and I are making is that there is a logical gap between 'guilty in the eyes of the law' and guilty simpliciter.

Whether or not there is this gap is the issue. So if this little philosophical proceeding of ours were presided over by an umpire or judge, he would tax you with an ignoratio elenchi.

I note also that you did not address the argument I gave in my post: "To prefer that a guilty man go free than that an innocent man be penalized and in some cases executed is precisely to presuppose my distinction between being guilty/not guilty and being found guilty/not guilty in a court of law. He who denies this distinction removes the main reason for the presumption of innocence, a central pillar of our legal system."

To my mind, this consideration decides the matter. Do you agree, Peter?


Thanks for reading all these years. I like your phrase 'legal proceduralism.' Is there anything in the literature on it?

Hi Bill -
I'm not very well acquainted with Philosophy of Law, but I think the legal proceduralism borrows from proceduralism in ethics, especially from Habermas. In ethics, proceduralism is (roughly) the idea that what makes a choice/decision "right" is that it is the product of a particular sort of procedure.

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