Picture me this: a maths graduate student comes up with an amazing proof for one of the great unsolved problems in mathematics. He/she submits this to a supervisor, who checks it thoroughly and points out an error. On page 137, an extra minus sign popped into the proof out of nowhere, possibly from a typo or a markup error. “Bloody hell!” fumes the grad student to their SO. “I can’t believe such a wonderful proof got canned because of a technicality. It should definitely have been accepted.”
Of course this strikes all of us as ridiculous because in the precise world of maths there’s no such thing as a technicality, there’s no such thing as a proof being right “in spirit” — it’s either right or wrong and the fact that the difference may rest on a single minus sign is just how it is. Here’s a perfect illustration:
When I was very young – I think thirteen or maybe fourteen – I thought I had found a disproof of Cantor’s Diagonal Argument…So I found this counterexample, and saw that my attempted disproof was false, along with my dreams of fame and glory…I resented the theorem for being obstinately true, for depriving me of my fame and fortune, and I began to look for other disproofs. And then I realized something. I realized that…I made a mistake. That was all. I was not really right, deep down; I did not win a moral victory; I was not displaying ambition or skepticism or any other wondrous virtue; it was not a reasonable error; I was not half right or even the tiniest fraction right. [Source]
But I think this idea actually extends much further — most of the time people are talking about technicalities or loopholes it’s a similar situation. Although legal systems aren’t exactly maths, people who talk about technicalities are making a similar mistake. This was pointed out to me by an old roommate when she was studying law. “I can’t stand it when people get upset about someone getting off on a ‘technicality’,” she said referring to populist ire against someone being acquitted of a crime because of say an illegal police search. “There’s no such thing as a technicality, it’s either legal or not.”
Yes, there are many legitimate debates about philosophy of law and the law is a human institution without the same level of preciseness of maths. Still, I can’t see a distinction between a ruling made on a technicality and a ruling made on “real” legal issues. Of course when someone complains that a defendant was acquitted because of the “technicality” of an illegal search, they are saying that how the search was conducted is a trivial matter that should not have affected the legal outcome. But I suspect in most of these cases, such a person simply hasn’t thought about the reasoning behind the “technicality” for more than 5 seconds. At the very least, the rhetoric should be adjusted to saying “this person was acquitted for poor reasons and therefore the law should be changed altogether”. But again, to be consistent the populist must now insist on getting rid of the concept of a legal police search.
Why do I bring this up? Because of yesterday’s post about the Cordoba House (aka the “Ground Zero Mosque”). The best analysis I’ve seen by far is a brilliant post by Will Wilkinson. Money quote selections:
The sanctity of private property and religious liberty are of course essential elements of the traditional American creed. But to actually apply these principles misses the point [in the eyes of conservatives]…I suspect that Bloomberg’s appeal to property and religious liberty will appear to many as a shady, lawyerly attempt to assert the American creed against the interests of American identity.
Exactly. So many of the hysteria I’ve seen seems drenched with the idea that “sure, they technically have the property rights to build the centre, BUT bla bla bla”. There are many things that drive me insane about this whole thing but this is the biggest one. To many who oppose the centre, property rights and religious freedoms are only a “technicality” — but of course only because they are being applied to “them” and not “us”. But as Amanda Marcotte pointed out in New York especially, “they” ARE “us”!
So, methinks this shows why there are no technicalities or loopholes — just laws and legal details, some good and some bad. And you could do a whole lot worse than the 1st ammendment, which I wish existed in my backward country.
11 comments ↓
I’ve just realised you can tell how angry or ranty my posts are by counting how many scare quotes there are…
Pretty “black and white,” isn’t it?
We’re taken from mathematics to court trials to the proposed mosque at Ground Zero and told that the objection against “technicalities” applies in all cases. Sure, math has no room for even minor error. I agree with you about the mosque. On the other hand, when an otherwise obviously guilty man escapes conviction for murdering your mother because of a procedural error and then is freed to kill again, you might find the offending “technicality” a little more substantive. Maybe we should slaps the hands of the police who illegally searched his home, maybe even charge them with a crime in some cases. But to dismiss clearly damning evidence just because the T’s weren’t crossed quite right and I’s weren’t dotted perfectly is itself a miscarriage of justice.
Well yes I said the law isn’t exactly the same as maths but what the two have in common (in cases of law where it’s not ambiguous or uncharted territorry) is that something is either legal or not in a way that’s similar to a maths proof. The caveat above would exclude when someone has to create a truly new ruling.
As for someone being “obviously guilty”, that’s part of my objection. If you’re involved in the case and have spent time perusing the evidence then I think that’s a label you’re entitled to but this is an opinion that is thrown around very casually by members of the public who may have heard about it from a newspaper (and is probably correlated with anger at technicalities).
However if someone thinks that illegally obtained evidence should be usable in a court of law that’s a different and respectable position (if it’s coherent and the person has thought out the implications and reasoning for both sides), but this takes it far from accusations of technicalities.
Mmmmm, no. There are definitely technicalities and loopholes. You’re looking in the wrong direction. A technicality is a way of obeying the letter of the law while disobeying the spirit of it.
A good example of this is the formula “not a million miles from” as used in the British press. Suppose I wanted to say that the Prime Minister of England was committing bigamy, not because I have any proof but because I dislike the PM and want to sling some mud. Under British law, if I write “The Prime Minister is a bigamist” I have committed libel. But if I write, instead, “there is a case of bigamy not a million miles from number 10 Downing Street”, it will not be libel because I have not specifically mentioned the Prime Minister, even though everyone knows due to the established formulaic nature of the phrase what I am trying to say. (I’m not sure how up-to-date this is in UK law, so don’t use this as an method to say bad things about people. It certainly was true a few scant decades ago, though.)
Your example about the Cordoba House is not a loophole because the laws in question were not intended to privilege Christianity (or penalize Islam). The conservatives, however, believe that the law was intended to do so as a result of their profound ignorance of history, and therefore regard it as a loophole.
It happens in other realms of law as well. The income tax laws in the U.S. are meant to be progressive — that is, people making less money pay a smaller percentage of their income; the greater your income exceeds what you need, the more of the excess you will lose. But thanks to the specifics of the way the laws are written, it is possible for wealthy people to arrange their wealth to avoid taxes on it. This is typically not possible for people who are not wealthy, since the methods used require spare money which will not be needed immediately. As a result, the very rich can (and usually do) pay a smaller percentage of their income in taxes than do everyone else. (Consider Warren Buffett’s famous admission that he pays a lower percentage of tax than his secretary!)
I didn’t go into the proper detail about the philosophical underpinnings behind this (I let this post and the prev be a rant that’s uncharacteristic of the blog), but I don’t think I agree about the distinction between “spirit” and “letter”. Or at least I don’t think it’s nearly as clear cut as it’s often presented. For instance I believe many laws (or at least contracts) include catch-all clauses that refer specifically to the intent of the document as a whole and the discretion of the adjudicating parties. In this case, the spirit is spelled out in the letter.
But the other problem is when going backwards — it’s problematic to infer about some supposed spirit especially when all we have is the letter — at the very least there are problems with the stronger forms of originalism. Also even if we can determine the intent, our views on this intent may change over decades and centuries.
Maybe it doesn’t matter too much at the practical level but I prefer to think of the problems you described as potential problems with the letter of the law, regardless of the spirit. The title of the post is deliberately hyperbolic but my main problem is with the trigger-happy use of ideas like technicality without thinking about the details more carefully — and also as if it is some platonic ideal.
It strikes me that you have missed the difference in purpose of the three cases:
The aim of mathematic proof is to get the correct answer, any mistake in working, however small make the result invalid.
The aim of having sanctity of private property and religious freedom is to allow people to do whatever they like with their own property and no amount of public disagreement at that purpose should get in their way.
The aim of a court case is to determine who the guilty party is. By having a mistake somewhere, either in the chain of evidence or by having the trial a day late, you are not allowing the truth to be found out.
If you think the court case is about justice then you have to be careful, it is easy to go too far in allowing police leeway just to bring people to justice, this often leads to more injustice as innocent people are prosecuted.
I think that the balance has to be towards letting the guilty off rather than punishing the innocent. Thus if any process is missed, any document not signed, any procedure mishandled, then the accused has to be given the benefit of any doubt and if a guilty man walks free then so be it.
Another posting about the Islamic Center is in Shallit’s blog. He is commenting on the fact that Asian Tribune’s Habib Siddiqui is, on one hand, angered about the bigots who oppose the center while, on the other hand, he tries to raise a Jewish/Muslim issue.
One of the frequent commentators there, a certain “Miranda”, wrote:
If they build an Islamic “community center” near Ground Zero, it will be just another location where they have marked their conquest. (such as their Dome of the Rock in Jerusalem, the Hagia Sofia church, and Moors’ Cordoba.)
Isn’t it stupid? And, of course, I replied.
You are absolutely right about mathematics and the fact that mathematical rigour is often seen “inappropriate” in other domains of human activities (not just law). But, look, most people view mathematicians as oddities. Try to convince someone that “maths” is not just the boring algebra he/she did in high school, but more than that. And try to tell them that it has something to do with logic and law and politics and decisions and planning and, and,…
May I add that, in haste, because I have to move to Sweden today…, that I wish that law was so perfectly designed that any exceptions to it would be totally inappropriate in all cases. However, while I agree with your argument above, I do think there are many unjust laws and the only thing that often saves us from their trap is that they are not applied verbatim.
Ok so just to reiterate — I was not saying the situation in law is the same as in maths proofs but that a very large proportion of complaints I’ve seen about technicalities have a direct similarity. I certainly agree that the writing of laws is about balancing different priorities and trying to go for a fairly elusive outcome. However in the application, the law tends to be more clearcut and it is playing fast and loose with it using ideas like technicalities that I object to.
Keddaw — I agree that it makes sense that we lean towards acquitting people, and it is from this perspective that an acquittal because of the rules of evidence is not a technicality but a proper application of a reasonable law. (Or from the other side a proper application of an unreasonable law that should be changed across the board.)
Takis — about your comment on Recursivity. As per my post yesterday I actually think it’s a red herring to be drawn into a discussion about the mental state of either the 9/11 hijackers (“were they representing Islam?”) or the Cordoba House management (“do they see this building as a symbolic victory?”). These inevitably lead to substantive discussions on Islamic religion, thought and politics which while interesting probably draws us away from the questions about the actual issues (constitutional rights, zoning and community approval, NYC demographics etc)
[...] related item is the idea that Judaism is largely about loopholes. I’m pretty unsympathetic to most claims that X is a loophole anyway. But the idea that an eruv is a loophole is probably a misconception. According to this [...]
“Consider Warren Buffett’s famous admission that he pays a lower percentage of tax than his secretary!”
That is probably not due to aggressive tax planning though. It is instead due to the fact that his income is capital income, while his secretary’s income is labor income.
Capital income is taxed at a lower rate than labor income due to a basic policy decision, not any form of technicality.