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Concepts of Justice and The Law [Period 4, Class #9, Mar 9]

"Justice," Alex began, "is frequently depicted as a pair of balancing scales. If you've been paying attention so far this semester, you probably can see how that would be appropriate. A lot of the fundamentals of justice are, at heart, an elaborate balancing act. When the lines have to be drawn, what do you privilege? Where do you err, in the gray areas? That's something we've been discussing, in one form or another, nearly every week."

"This week, we're going straight to the heart of the matter." Alex pointed to the blackboard, which had a few sentences written on it.

FOURTHLY, all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.

"This is known as Blackstone's Formulation," Alex said, "although the principle behind it is much older. Sir John Fortescue said much the same a few centuries earlier. The idea here is that, all else being equal, it is better for a judicial system to acquit ten guilty people than to convict one innocent person.

"Obviously, the ideal would be to convict every guilty person and to never convict anyone who was innocent. But that's not realistic. Some accused will confess. Some crimes, you will have clear and undeniable evidence. The rest of the time? You have a great deal of evidence pointing towards that person, while he or she swears innocence.

"It is each society's decision, what to prioritize in that moment. Not all follow Blackstone. Otto von Bismarck said the opposite: better to imprison ten innocent men than to let one guilty go free. Bismarck's country would presumably have less crime, but I'll say, I still wouldn't want to live there.

"If society decides that it's better to acquit the innocent than convict the guilty, then the burden of proof is on the prosecutors. The government has to prove, within a reasonable doubt, that this person is guilty. Reasonable doubt doesn't mean no doubt at all. If aliens might have abducted this person and replaced him with a body double, that's certainly an alternate theory of the crime, but it's hardly a plausible one."

At least, for places that weren't Fandom.

"No one is found innocent in a court of law: the verdicts are Guilty or Not Guilty, and sometimes the latter means 'we're not sure.' If you're not convinced, as a jury member, you should vote Not Guilty. Put the burden on the prosecutors. Make us do our job.

"By contrast, if you're living in Bismarck's world, you have to prove your innocence, if you're charged with a crime. Proving a negative is difficult. Find a good alibi, find a good attorney, and good luck."

Alex clasped her hands together, in front of herself. "So. That's this week's topic. Reasonable doubt, and balancing those scales. Do you follow Blackstone, or Bismarck?"

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Which society would you rather live in? Do you feel the burden of proof should be on the individual accused, or society? Are there any crimes which you feel merit different consideration? Are you more upset by the prospect of the innocent being convicted, or by the guilty walking free?

Edited 2010-03-09 18:59 (UTC)

"I'm pretty sure I'd rather live in a society that believes mostly in Blackstone's theory," said Bod after some time to think about it. "On the comfort level, it'd be a lot easier to want to be an active member of society if I wasn't worried that a small misstep or something someone perceives as a crime gets me locked up when it wouldn't otherwise be deserved."

In Bismarck's society, Bod was pretty sure he'd already be in jail. "Bismarck's society almost sounds like martial law where anyone can be locked up if someone in a position of authority thinks you're in the wrong. Twenty people are locked up due to possibly being a threat when no one really is. It'd be overbearing and difficult."

"It would," Alex agreed. "Bismarck's society would be more dictatorial. Good for enforcing order, bad for civil liberties. Those in charge would have less to fear from the populace. You have to imagine it'd be ripe for corruption, as well. Where you could invent reasons to lock up anyone the government found undesirable."

"I've lived in both," Ben said quietly. "I prefer Blackstone. Bismarck is oppressive."

"I haven't ever had to live under Bismarck," Alex said, offering a sympathetic smile. "I'm sorry that anyone has to. I'm sure the government likes it, but I'm not sure they realize those same weapons can be turned back on them."

"When they're afraid, they don't really care," Ben replied.

Alex bit her lip before nodding. "That's often how it starts," she said. "It's very easy to convince a populace that they'd rather have protection than freedom, if there's a looming menace just over the horizon."

"It's harder to implement when you are talking about a million different planets," Ben replied, "which means we zigzag between too lax and too strict every few years."

"That would make it harder to have a proper chain of command," Alex said, musing over the issue. "Unless you had a clear hierarchy. Each planet to a larger group of five or six, and each of those feeding into a pool of twenty, and those to a hundred, and so forth. Everyone knows where the next point of command is, to ensure rules are handled uniformly."

Which got into tons of bureaucracy and paperwork, so it wasn't necessarily any better.

"We do it by planetary systems," Ben replied. "Each gets a Senator to represent them in the Galactic Senate on a macro level, and then the planets can deal with each other in system for more local issues."

"Does that help?" Alex asked. "Can the planets police one another effectively, should one turn into a Bismarck society overnight?"

Ben wiggled his head. "Depends on the planet. Some of them are fairly Bismarck by nature because of the distance between them and the Core Worlds."

"How can ANYONE justify putting innocent people in jail?" Kurt protested.

"I don't think it's intentional," Alex clarified. "In some cases, people would argue that freeing the guilty is more dangerous. If you don't convict a murderer, and he goes on to kill twelve more people, society isn't safe."

"And if you convict the wrong person, the real murderer is still out there," Kurt countered.

"...I'd rather be fair than safe," he added, pouting.

"So would I," Alex admitted with a wry smile. "I was only trying to explain the reasoning behind it. In times of great danger, people sometimes allow intrusions on their sense of fairness in order to feel safe."

Edited 2010-03-09 22:05 (UTC)

George shrugged a little. "I'd rather be livin' where th'rights of th'innocent do have greater weight."

"I have to imagine most people would," Alex nodded. "It seems like the only people who'd rather the latter are the ones already in charge, hoping to stay that way."

"Aye, well, ye can' be trustin' nobles anyway," he agreed.

"What about elected officials?" Alex asked, somewhat amused. "Average citizen runs for office, and everyone casts one vote. Winner gets power. Is that safer?"

Momoko thought about it for only a few seconds. "You shouldn't have to prove you're innocent. The police should have to have proof that you did what they say and if they can't prove it, it's not your fault."

"Nicely said," Alex smiled. "If we can't prove you did it, then how can we be sure you did it? Which goes right to the heart of the matter: the harder it is to convict, the less likely we'll convict someone innocent."

"I think I'm more unsettled by the idea of the innocent being convicted," Dinah said. "With the guilty going free, yeah, they can try again-- but so can you, if they commit another crime. It's harder to disprove a negative, like you said. If anyone's vulnerable to accusations, we'd all have to be on our guard, all the time. Too hard to live like that."

"Too easy to turn into a police state," Alex agreed. "It's a shame that justice won't be served, in the interest of those crimes in particular going unpunished. But there are costs to any system, and that's the payoff for this one."

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Concepts of Justice and The Law [Period 4, Class #9, Mar 9]

Discussion - Blackstone v. Bismarck - JST09

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