Richard Dawkins’ law delusion

AIX-EN-PROVENCE, France - Richard Dawkins is one of the great minds of our time; yet in his just-published memoir, “Brief Candle in the Dark: My Life in Science,” he notes that great minds often err when they leave their field of expertise. He cites the great astronomer Fred Hoyle, whose book “The Nature of the Universe” was essential reading a half-century ago. When Hoyle turned to biology, he went astray. The same thing happens to Dawkins when he turns from science to law.

Dawkins sees law as a tug of war. One party, he says, makes the strongest arguments for a proposition “whether they believe it or not,” and the opposing party pays somebody to make the strongest counter-arguments. The outcome is just a question of who wins the tug of war. He thinks lawyers would be more “honest and humane” if they were just to “sit down together, look at the evidence and try to work out what really happened here.”

Dawkins’ argument is marred by three common fallacies. The first might be called the Crime Fallacy. As is true of many people, what first springs to Dawkins’ mind when he thinks of law is criminal law. Criminal trials fill a large space in the public imagination, but - to borrow a metaphor from biology - they are but one cell of law’s complex corpus. Most lawyers and judges never enter a criminal court.

The second is the Guilt Fallacy. Dawkins is “deeply shocked” to discover that a person who committed an illegal act may be found not guilty.

The Guilt Fallacy confuses “guilt,” which is a legal concept, with the commission of a forbidden act. Whether one has committed an act is a question of fact. Whether one is “guilty” is a question of law. A person may have carried out an act, but quite rightly be found “not guilty” - just as he may be found “guilty,” even though he did nothing.

This puzzles Dawkins, as it does many others. “Guilt” means that the state has proved beyond a reasonable doubt that the accused committed the act. If the state cannot prove it beyond a reasonable doubt, the accused is “not guilty” - regardless of whether he or she really did commit the act.

If that burden of proof - “beyond a reasonable doubt” - were lowered to, say, “a preponderance of the evidence,” as it is in civil cases, the state would have an easier task. But while this would result in more guilty verdicts for those who have committed crimes, it would also cause more innocent people to be found guilty.

The underlying premise that Dawkins seems to be failing to grasp is straightforward: It is better to let 10 criminals go free than one innocent person be convicted. Centuries of legal history show that this system, though far from perfect, is the fairest that humans have been able to devise.

Dawkins’ third and most fundamental fallacy is the delusion that law is about truth - “what really happened,” as he puts it. Let us call this the Truth Fallacy. It is here that Dawkins goes furthest astray.

The goal of law, unlike that of science, is not to determine truth; its primary aim is to minimize conflict. U.S. Supreme Court Justice Louis Brandeis summed up this understanding as follows: “In most matters, it is more important that the applicable rule of law be settled than that it be settled right.” Even a wrong or “unjust” decision can end a conflict.

Only when parties to a conflict cannot reach an agreement will a judge try to discover “what really happened.” Lawyers call this the fact-finding process, which is characterized by a trade-off: Finding out what really happened, as opposed to ending the dispute, can be costly.

A comparison of American and French law is illustrative in this regard. American law has an elaborate fact-finding process called “discovery.” In French civil disputes, by contrast, there is no oral testimony with cross-examination of witnesses. All evidence is written. Lawyers gather whatever written evidence they have and submit it to the judge, who then decides. In cases where something - a building, for example - must be seen, the French judge will appoint an “expert” to go look at it and then submit a written report.

The American legal system is better at getting at what really happened, but its high cost leaves much of the public without access to the courts. The French system provides greater access to the public, but it is less likely to find out what really happened.

The cornerstone of law is social harmony, and its ultimate purpose can be defined as promoting social happiness, a higher standard than mere harmony. Dawkins found happiness in science; we are all the richer for his contribution. But, judging by his memoirs, we are equally fortunate that he did not pursue a career in law.

Copyright: Project Syndicate, 2015.

*The author, who practices law in France, is the author of “Federal Habeas Corpus and Justice after Darwin.”

by Ronald Sokol