Re: How You Do Not Tell the Truth

Date: Fri May 04 2001 - 14:27:21 MDT

I take it, Robin, that you criticize the legal system for failing to seek
truths about the *material facts* that give rise to legal disputes. To be
sure, fact-finding of that sort plays an important role in legal proceedings,
especially criminal ones. But the resolution of a great many legal disputes
does *not* turn on facts about the physical world; indeed, such disputes find
the parties stipulating to the relevant facts (e.g., motions to dismiss) or
effectively powerless to affect the court's understanding of the facts (e.g.,
appellate proceedings). Rather, such disputes turn on the *legal
interpretation* of undisputed matters of fact ("common priors" in your
usage). And in that context I think it appropriate to say that the
adversarial parties *do* see themselves as participating in a process
designed to uncover truth--to wit, truth about the law.

Relatedly, I would not concede that even in legal proceedings where
adversarial parties do aim primarily at establishing material facts that the
salient desire to win trumps all. A vast body of evidenciary rules and
ethical obligations control the collection of facts in such instances.
Granted that legal processes do not necessarily facilitate the revelation of
all material facts (particularly in criminal cases); still, it bears
emphasizing that such institutional features strongly discourage the
generation of falsehoods.

A few other comments follow below.

In a message dated 5/3/01 11:08:17 AM, writes:

>The legal process may produce truth, but I think it safe to say that most
>individual lawyers do not think of themselves as participating primarily
>to produce truth. They want to win. Most academics, on the other hand, do
>think of themselves as seeking truth, so it seems worth pointing out to them
>that their behavior suggests that they also mainly want to win.
>I doubt that deliberate exaggeration itself facilitates the search for
>truth. The best institutions we can find using existing humans may in fact
>result in exaggeration. In which case it would be negative we should accept.
>But it would still be something truth-seekers would regret. And I have
>my doubts about how well existing legal and academic institutions do at

I didn't understand the "it would be negative we should accept" bit, but I
take it that you mean to say that truthseekers should not welcome
exagerration because institutions relying on exagerration do not do well at
promoting truth. That's an empirical claim, of course, and you may be right.
 Indeed, of all people, *you* have good grounds to claim that there are
better institutions than extant legal and academic ones for promoting truth.
But I would emphasize that no mere aesthetic objection to *individuals*
deliberately exagerrating their version of the truth should serve to
discredit an *institution* designed to, in the aggregate and thanks to
competition between such individuals, uncover truth. That's the sort of
objection that newbie law students make about the law ("Why don't we all just
hold hands and agree instead of engaging in all this unpleasant fighting?!")
and, I daresay, the sort of objection that ignorant socialists make about
"wasteful" economic competition.

>>... Consider, for instance, that we agree about almost
>>everything. That's perhaps an odd thing to say, but only, I think, because
>>we take our nearly universal agreement for granted. Most conversation,
>>particularly outside of professional and academic contexts, does not involve
>>debate. (Review, for instance, recent discussion around your household.)
>>debate only a very few, usually not very important (e.g., sports), and
>>usually not very easily resolved (e.g., theology) issues.
>I think this is just not true. Ordinary people disagree on just about
>everything, e.g., household chores, who likes who, what foods are healthy.
>They disagree especially on just about any question of individual ability.
>People consistently think themselves more able than others think them,
>in cooking, driving, kissing, you name it.

That, too, is an empirical claim. I can only say that I know of no
scientific study on the issue--and that my personal experience seems to vary
widely from yours. Call me a laid-back Californian, but I just don't spend
much time around the house or office arguing with people!

T.0. Morrow

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