What is the essence of proceduralism? I suggest: the criteria by which we judge that such-and-such is the case are constitutive of what it is for such-and-such to be the case. Or perhaps: the norms governing the validity of the 'output' of a procedure are identical to the procedural rules whereby fair are distinguished from unfair procedures. But I had better give an example, and pronto.
1. Lotteries. About (fair) lotteries we ought to be (pure) proceduralists. That is, we ought to hold that the procedure by which it is determined that a certain number is the winning number constitutes what it is to be the winning number. Of course I am assuming that the lottery procedure is fair: the selection process is random, and so on. So assume we have a fair lottery and that Wealthy Willy wins a pile of loot. Surely the following questions are senseless: Did Willy really win? Or was he merely judged to have won by the lottery officials? Isn't it possible that the lottery procedure, though fair and unbiased, selected the wrong winner? Isn't it possible that Impecunious Ike, or some other guy, is the real winner?
The point could be put as follows. With respect to lotteries, it is broadly-logically impossible that a person instantiate the property being judged to be a winner of lottery L and not instantiate the property being a winner of lottery L.
When it comes to lotteries, proceduralism is the only game in town.
2. Elections. The same, I think, goes for elections. If Snerdly gets more votes than the other candidates, he becomes president of the chess club. Surely it would be senseless to question whether Snerdly has really been elected, as if he could have an 'elective status' independently of the (fair) procedure by means of which he either wins the office or not.
In both the lottery and election cases one could of course maintain that there is something unfair, though not procedurally unfair, about the result. If Wealthy Willy, who needs no money, wins a million then that will be perceived as an unfair outcomes by the other players, all of them poor schmucks. But this is irrelevant to the point. It is also irrelevant to Snerdly's 'legitimacy' that he is not competent to be president if you assume that he was fairly elected.
3. Trials. Suppose a man is found guilty of a crime in a court of law in which all the proper procedures have been followed. Assume that the prosecution, the defense, the judge, and the jury are all highly competent and morally above reproach. The man has been found guilty of committing some crime; can one nevertheless reasonably ask whether he in fact committed the crime? In the case of Wealthy Willy, one cannot reasonably ask whether he in fact won: his having won just is his being-judged-to-have-won by the lottery officials.
If a sharp thinker insists that even in the Willy case there is a distinction between the two properties, I will cheerfully concede the point and congratulate the thinker on his intellectual acuity; but I will go on to insist that the distinction obtains only on the 'intensional plane' and not on the 'extensional plane.' For surely it is impossible that Willy or anyone instantiate the first property without instantiating the second.
So, extensionally, there is no distinction in the case of Willy between the property of having won and the property of having-been-judged-to-have-won. My question is whether, extensionally, there is a distinction between being guilty and being found guilty in a properly conducted court of law.
My answer is in the affirmative. This implies that there is at least a serious question as to whether proceduralism holds with respect to legal trials. A rational person must be a proceduralist when it comes to lotteries, but he needn't be when it comes to the law.
But I am prepared to make a stronger claim. Not only is there a serious question as to whether proceduralism holds with respect to legal trials, proceduralism does not and cannot hold with respect to them. For it is not perfectly obvious that people have been tried, convicted, and executed for crimes they did not commit? They were found guilty but they were not guilty in fact. All the procedures were properly followed and they were found guilty beyond a reasonable doubt. But they were not guilty in fact.
4. One might object to the foregoing as follows:
Look, we are agents, not transcendental spectators, and we have to come to intersubjectively binding and enforceable decisions in a timely fashion about matters of moment in conditions in which certain knowledge is rarely available. Sure, Jones is conceivably innocent despite having been found guilty in the eyes of the law. His guilt or innocence is not constituted by his being found guilty or innocent. But that is a merely theoretical consideration. For all practical purposes to be found guilty is to be guilty. After all, there is no other way we have of reliably determining guilt and innocence apart from the court sytem. We cannot call God on the phone. He is incommunicado, the hot line to the divine having been down for some millenia now. Given that there is no other equally efficacious procedure available, for practical purposes the 'ouput' of the legal procedure is identical to the objectively correct 'output.'
This objection concedes the main point I wanted to make, namely, that one cannot be a (pure) proceduralist when it comes to legal trials. This objection is the best I can do by way of a charitable interpretation of certain recent animadversions of commenter Philoponus in the comment thread to this post. But perhaps I haven't understood him.
Hi Bill,
The clarity of your position invites and deserves a brief reply.
Ignoring some qualifications and caveats that are already on the record, we can say that in our system of criminal justice only jurors are empowered to decide guilt or innocence. Only seated jurors. You and I and Sherlock Holmes and the Deity himself are not seated jurors. It matters not what we know or think we know, we are not empowered (“competent” in the legal sense) to judge whether someone is guilty or innocent of a charge brought to trial.
We can be unhappy with a jury's verdict. We can wish that the jury had reached a different verdict. We can believe that if we had been on the jury we would have voted for a different verdict. Fine, we can have all those opinions, only please let us not try to express them by saying of someone who has been acquitted that he is nevertheless guilty. No, he can’t be. The only people competent to decide have decided and he’s innocent, and that’s it.
When a jury finds someone like OJ innocent of a double murder, it is virtually impossible to have that verdict set aside. OJ can go on Oprah and brag about killing his wife. He is still innocent. A tape could surface clearly showing OJ knifing his wife to death. He is still innocent. The only thing OJ must never say is “I bribed a juror”. That would open the gates of Hell for OJ.
Guilt or innocence is not something that follows from a set of facts and laws. Jurors are not expected to be experts in inference and probability. From even “OJ confessed to kill his wife and Ron Goldman” we can never infer that he is guilty of a double murder. A confession is a fact that may or may not be admissible in a trial. Jurors see only admissible evidence and must make their decision based on what is presented to them. “But key facts are sometimes kept from them!” Yes, for good reasons. For example, OJ had recently trained in knife fighting. Too prejudicial, the judge decided, and not probative of any criminal intent , etc. OJ’s jury considered the evidence presented to them and decided he was innocent. Did that mean they believed he didn’t do it? No. It meant that they thought the prosecution didn’t prove it. OJ’s jurors apparently focused on errors and misconduct by the police, which they concluded fatally compromised and tainted the prosecution (a “not proven” verdict under Scottish law). So, having been acquitted, OJ is innocent of those murders, now and forever, regardless of what he did. Say if you wish "He killed them", but you cannot say at this point "He's guilty of those killings".
Posted by: Philoponus | Saturday, June 18, 2011 at 02:07 AM
Unfortunately, you didn't reply to my point.
Posted by: Bill Vallicella | Saturday, June 18, 2011 at 03:19 PM
Hi Bill,
I am (let’s assume) a properly ordained minister—Rev. Phil at your service, weddings and exorcisms my specialties. A couple with a properly executed marriage license appear before me and ask me to marry them. They fork over $20 and we have a tasteful little ceremony which ends with me solemnly intoning “ By the authority vested in me by the State of Arizona I now pronounce you man and wife”. Having gone through this little ceremony and been pronounced man and wife, the couple are now legally married. Someone who says “Oh sure, Rev Phil pronounced them man and wife, but are they really married?” has been much too long at the reception punch bowl.
A jury has a similar special legal power to convict or acquit. When the foreman of the jury stands up at the end of the trial and says “we find the defendant not guilty of all charges”, he has created an innocent man. It is the same kind of nonsense then to say “Oh sure, the jury found him innocence, but in fact he’s guilty.” People who don’t understand the law sometimes utter this kind of oxymoron (to the vast amusement of legal professionals), but it makes no sense than saying “oh sure, they were legally pronounced man and wife but in fact they aren’t married.”
“We find the defendant not guilty” is what JL Austin called a performative utterance. It is an important performative recognized at law. Only the jury may utter this, and when they do, it has the effect of creating an innocence man. Just as when the Queen says “I create you Lord Philip of Scottsdale”, she has created a peer.
As you know, all performances are subject to various infecilities, which can compromise or even void the act. If the lady I "married" forgot to mention she was already legally married, or “she” is really a he, then in AZ the marriage is void. If it can be proven that the jury who said “innocence” was bribed, then that verdict can be set aside. When you say “he was found innocent but he’s guilty”, are you trying to hint that some misconduct occurred that merits a set-aside? Then it would be much better to say that.
After his acquittal OJ can admit he killed his wife, and that confession would have absolutely no bearing on his innocence of her murder. Innocence is protected by double jeopardy. This is the point that I think is not understood: after an acquital a defendant is innocent of that crime regardless of what he in fact did. That’s why it’s oxymoronic to say “He was found innocent but he’s guilty”, or worse “Innocent men have been convicted, sentenced, etc.” That CAN’T happen.
Forgive me if I’m a little reluctant to talk about procedures and proceduralism. The terms are not familiar to me, especially what all would count as a procedure. I am more comfortable using Austin’s now familiar distinction of performative and non-performative, which Austin in fact took from the law. If I say “I promise” I have promised. If I’m a minister and say “you are married”, you are married. If I’m a jury and say “innocent”, you are innocent. Saying makes it so! Being found innocent makes you innocent.
Posted by: Philoponus | Saturday, June 18, 2011 at 05:44 PM
Philoponus,
I just recently read How to Do Things with Words, and I must say that I loved it to the core. Among its many merits is that therein Austin staunchly refuses to let any theorising, including and especially his own theorising, get in the way of the datanic facts concerning language that provide the basis for his investigations. And among those facts are that a man can rationally and truthfully
—cry "But I'm innocent!" upon being found guilty by a jury,
—confess to his attorney that he is guilty of the crime,
—lament that the guilty often go free and the innocent are punished,
—tell his friends in private, in a conversation concerning another friend's trial, "I am the guilty party,"
or the like. All of these are, I say, philosophical data, and anyone who objected to their utterance on the grounds that the language-game of guilt and innocence makes them oxymoronic would deserve the raised eyebrows and snarky replies he would receive. (This is not to say that the speech act whereby a jury charges a man with guilt is not a performative: it makes the man a convict. This, however, is a separate philosophical issue deserving of treatment in its own right.)
If it can be proven that the jury who said “innocence” was bribed, then that verdict can be set aside. When you say “he was found innocent but he’s guilty”, are you trying to hint that some misconduct occurred that merits a set-aside? Then it would be much better to say that.
But I think it pretty clear that Dr. Vallicella does not mean that at all. "Suppose," he writes, "a man is found guilty of a crime in a court of law in which all the proper procedures have been followed. Assume that the prosecution, the defense, the judge, and the jury are all highly competent and morally above reproach" (emphasis mine). Surely there can be sources of error in jury deliberation aside from Austinian infelicities. After all, the jury is not required to be infallible.
Finally, if your point is simply that in technical legal jargon "guilty" means "found guilty by a comptent jury," then I don't see that the point has much philosophical interest. The law is free to define words as it likes; nomina significant ad placitum. If, however, the topic of our discussion is one of the real, as opposed to merely nominal, definitions of guilt and innocence, their true essences, then I think all of the above stands.
(A further point: if being found guilty by a comptent jury is that in virtue of which a man is guilty, then what guilt is there to be found by the jury to begin with? But perhaps this is merely a result of incidental wording.)
Posted by: Leo Carton Mollica | Sunday, June 19, 2011 at 12:25 AM
Leo,
I can't believe you're a freshman! That's just excellent. And I don't say that because you are now agreeing with me. I said something similar earlier when you were disagreeing with me.
Posted by: Bill Vallicella | Sunday, June 19, 2011 at 04:56 AM
Hi Leo,
I am surprised but pleased to find a young person reading Austin. These days isn't he much unread and unloved by the philos? Urmson did a decent job publishing his James Lectures, which you refer to, but I think you'll find his best work in some of the essays in PHIL PAPERS.
You wonder whether I’m championing a piece of technical jargon. God strike me dead! On the contrary, I’m resisting jargon at all cost and trying to speak plain English. My point is something I hoped the more conservative readers of this fine blog would be sympathetic to. It is a point about language and proper usage. There is clear, precise meaning associated with “guilty” and “ innocent” which I find respected in many careful writers and speakers—a meaning informed by understanding what it is jury does when they find someone guilty or innocent—and there is a debased contemporary usage which seems utterly oblivious to what guilt and innocence really are in the context of crime.
I confess I foam at the mouth and my eyes roll back when I hear “innocent men are convicted, sentenced and executed”. That can’t happen—or maybe it can happen in a story by Kafka: a man is tried and found innocent and then the judge says to him “Defendant, the jury has pronounced you innocent. The penalty prescribed by law for being innocent of this crime is unfortunately the same as for being guilty. I hereby sentence you to…” We don’t do that here (yet). Innocent men are men not convicted of a crime. Bachelors don’t take their wives to dinner and innocent men don’t come up for sentencing.
OJ is innocent of the double homicide he was tried for. Now and forever innocent. If you think he killed those people, please just say that, but don’t say things like “he was found innocent but he’s guilty”, conflating the (possibly open) question of what actually happened with his guilt or innocence, which is now a closed question. Could we agree that it is better to speak carefully and precisely about guilt & innocence, or should I just shut up and go sit quietly in the corner?
Posted by: Philoponus | Sunday, June 19, 2011 at 07:40 AM
Philoponus - As I understand your position, it is impossible, in virtue of the meaning of words, for the judgement of a court of law to be "factually incorrect." Only legal, procedural errors are possible. Is that correct?
Posted by: bob koepp | Sunday, June 19, 2011 at 12:44 PM
Hi Bob,
Yes, when a jury declares someone innocent, they are not saying he didn't do it. They are not offering an epistemic/inductive opinion about whether the defendant likely did what the prosecution alleges. They are saying the prosecution's case failed to persuade them beyond a reasonable doubt and that judgement is not subject to further dispute. Juries, God bless them, take their commission seriously and will let people walk that they think did it because of a flawed and insufficient prosecution. OJ is a classic case. Read what Gerry Spence and Richard "Racehorse" Haynes say about this--they were both very successful criminal defense attorneys.
A jury's verdict is not a factual claim or assertion at all. It is a decision that can only rarely be set aside. It is in this sense nearly irrevocable, not "infallible" (Leo, are you listening?) I have never heard of an acquittal being set aside.
Posted by: Philoponus | Sunday, June 19, 2011 at 02:28 PM
Philoponus,
Two points.
First, philosophy is about reflecting on a practice and discerning the most fundamental elements embodied in such a practice. Philosophy of law, then, is a reflection upon law; its purpose is to identify the most salient aspects of this practice and discern their relationship to other aspects of human life (e.g., morality). Such reflection may uncover aspects that are not immediately apparent from merely observing the actual procedures enacted in a court of law (This point has been long ago emphasized by Plato).
You tend to think that you can refute a philosophical position such as Legal-Realism by reciting different kinds of legal cases and procedures in law. But this cannot be done, unless of course you dismiss philosophical inquiry as a legitimate form of inquiry at least with respect to law. Adopting such an attitude is right in line with positivism; and, my friend, you are a positivist and not merely regarding philosophy of law.
Second, since Legal-Realism claims that there *exists* a distinction between legal-facts vs. legal-decisions, you cannot refute this position by merely citing *some* cases where the distinction does not exist. You must show that the distinction fails in every case. And you have not done so. Why? Because in order to do so you need to enter into a philosophical inquiry about the legal practice, thereby, undermining your positivism. Hence, all you do, and all you can do, is narrate some cases where the distinction seems to be absent, while all along never venturing too far from a mere depiction of what goes on in a legal setting. I do not find this method convincing, but I understand why you are forced to follow it.
It is for this reason that Bill posted above:
"Unfortunately, you didn't reply to my point."
Posted by: Bill Vallicella | Saturday, June 18, 2011 at 03:19 PM
Posted by: Account Deleted | Sunday, June 19, 2011 at 05:35 PM