Re: Justice and Punishment

GBurch1 (
Tue, 24 Mar 1998 08:24:35 EST

In a message dated 98-03-24 05:33:18 EST, Den Otter wrote:

> Proving your innocence is done by, for example, demonstrating that you
> t
> at the scene of the crime at the time of the murder (or whatever). Only one
> (or a couple in extreme cases) of all those thousands of murders is
> to the case -- the one that has somehow been linked to you. The rest has
> nothing to do with your case, so you don't have to prove anything.

I think you underestimate the power a prosecutor wields in bringing
accusations. Placing the burden of proof on the state (or whatever person or
agency brings what amounts to criminal accusation) has proven to be one fairly
effective curb on that power. Consider that literally every single expert
observer of legal processes who is guided by fundamental values of liberty has
come to the conclusion that placing the burden of proof on the accuser is the
best starting point for any system of justice. Then read one of the classics
of legal writing, Kafka's "The Trial". Then, guilty or innocent, be accused
of a crime. Then come back and tell me that you want the accused to have to
bear the burden of proof.

If prosecutors were morally perfect people, the burden of proof wouldn't
matter. But they aren't, and it does.

> AI has nothing to do with it, these justice computers could be just a
> of simple PCS.

Any proposition of fact that could be judged by a "simple PC" would be so
laden with judgment already that the PC would be little more than the word
processor on which the result is written. I wish we were at a stage where a
PC could really "add up facts"; in fact, today's PCs still do very little more
than perform arithmetical calculations on simple strings of symbols. (I know
-- that's all a Turing machine ever does . . .) Most of the intelligence
still lies in the user's interpretation of the output of those calculations.

I don't doubt that we will have synthetic, non-human entities that will be
both the subject and object of a justice system, but when we do, we'll just
have invited such entities to share in the age-old conundrums of justice.
They might well do better than natural, unaltered humans for being able to
think more quickly and clearly, but they will still have to weigh facts and
conflicting evidence.

> Justice *should* be a matter of "adding up the facts", not
> "the whim of the day" of some judge. In a fair justice system one can
> count on an equal treatment of all cases. The best way to do this is to
> minimize the power of the human judges so that they truly speak on
> behalf of the _law_, and not themselves.

I wonder whether some of your ideas may grow out of familiarity only with what
we in the Anglo-American word call "the Continental system" or "Code system"
of justice, in which judges take a much more active role in the juridical
process than in the common law system. The Anglo-American system (no offense
to the Australians and New Zealanders -- I'm sure they call it the Anglo-
Australian system, etc.) has been characterized by a steady process of
curtailing the role of judges. In this system, on a case-by-case basis, rules
develop to systematize the legal matrix that is laid over the factual material
brought forward by advocates for the parties to particular cases. In cases
dealing with familiar questions (murder who-dunnits, for instance), the
discretion of the judge is highly constrained on a fine-grained issue-by-issue
basis. For example, each specific piece of evidence offered is considered
within a specific set of rules for admissibility and weight crafted through
the precedential system to fit the peculiar problems presented by evidence of
that KIND.

In a case presenting no truly novel issues, the rules developed by the common
law system isolate final fact questions quite well so that, at the end of a
trial very little is left to discretion. What IS left to discretion is almost
always just the sort of judgment call that can't be reduced to mechanical

In this regard, the common law system of case precedent can be seen as a very
slow AI system itself. Whether any particular line of trial and appellate
judges actually does follow the law developed by this system is another
question -- a political one. It seems though that any "artificial" system
able to fully comprehend and apply the entire corpus of such laws would be at
least as complex as a human judge or lawyer.

> The lie detector would only be used as a tool to add some pressure to the
> questioning, and could only serve as supporting evidence, not primary
> evidence
> that can lead to a conviction. It works because only the guilty know the
> details of the crime in question (it is not allowed to give details to the
> media),
> and only a guilty person would be nervous if the police brought him in for
> questioning (because, believe it or not, this would be a pretty fair
> judicial
> system, with *very* little chance of false convictions due to the many
> safeties (monitoring of all legal personel and facilities - tough
> punishments for
> "bad cops" etc.) and hard evidence-based convictions (when in doubt - don't
> convict). If you can beat the lie detector that doesn't mean you can go
> although it can be used as minor supporting evidence to your innocence.

The age-old question: Who watches the watchers? It seems that you have a
human in the loop; in a sense, the old "homunculus" of epistemology. As Nick
Szabo has written, many legal processes can be automated. I agree with him,
within the regimes he proposes (contracts that have quantifiable subjects).
But as I have had the pleasure of seeing, Nick has come to the independent
conclusion that the long process of case-by-case rule development of the
common law can't really be improved upon. I commend the material you'll find
at his web site

as an example of someone not infected by the legal-education system, who has
brought both some fresh insight to the subject AND has independently verified
the validity of many of the systemic values of the common law.

Greg Burch <>----<>
Attorney ::: Director, Extropy Institute ::: Wilderness Guide -or-
"Good ideas are not adopted automatically. They must
be driven into practice with courageous impatience."
-- Admiral Hyman G. Rickover