Hard News by Russell Brown

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Hard News: The war over a mystery

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  • DeepRed, in reply to Ian Dalziel,

    The great cycle continues – now the Police are moving to centralise their efforts, by closing suburban stations to the public – (did they use the same consultants that Housing New Zealand employed I wonder?)
    As in the past I’m sure in about ten years they’ll get this inspiration to engage with the public again and reopen them for access – or will they just get watch towers and checkpoints?

    The biggest winners from this will be shareholders in gated community developers. I can easily see this opening a rift between Laura Norder and the Treasury Old Boys Club.

    The southernmost capital … • Since Nov 2006 • 4214 posts Report Reply

  • Sofie Bribiesca, in reply to DeepRed,

    I can easily see this opening a rift between Laura Norder and the Treasury Old Boys Club.

    I can hear the chime of the Convention Centre. Cos we just need one m'kay

    monorail.....

    here and there. • Since Nov 2007 • 6058 posts Report Reply

  • Keir Leslie,

    To go further, HORansome is taking a pretty classical legal positivist line, that the law is what the law is. Which, ok, we can accept that as far as it goes. If I go to my lawyer and ask if such and such a course of action is criminal, I want them to answer based on what they think the law is, not what it should be.

    But (a) it is perfectly possible to deny legal positivism, and in fact someone like Ronald Dworkin would do so very strenuously and (b) we aren't lawyers here. We aren't engaged in disputation over what the law is, but rather what it should be. So a resort to legal positivism is an empty move, one that fundamentally doesn't tell us anything. HORansome would be pushed to declare that the murder was legal if the courts allowed it, which tells us that whatever it is he is discussing, it isn't anything we care about as far as wrongful convictions go!

    Since Jul 2008 • 1326 posts Report Reply

  • Islander, in reply to Keir Leslie,

    HORansome would be pushed to declare that the murder was legal if the courts allowed it, which tells us that whatever it is he is discussing, it isn’t anything we care about as far as wrongful convictions go

    Now, *that* is a very interesting & informed take on matters...

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    HORansome would be pushed to declare that the murder was legal if the courts allowed it, which tells us that whatever it is he is discussing, it isn't anything we care about as far as wrongful convictions go!

    Yes, your right that I would. It is a stipulative definition, after all. Nothing about that definition says anything about the rightness or wrongness of the act in question, though.

    In re Dworkin; I know Dworkin's work and I also know that his view on legal positivism is, at the very least, controversial. Certainly, I don't buy his arguments about how the legal system works; he seems to take it that the courts are interesting in fact-finding, but, as others have argued, if you look at the way the courts operate they aren't so much interesting in getting the facts of the matter as they are for discerning how the law should be interpreted.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • HORansome, in reply to Keith Hunter,

    As I noted earlier in the thread, Keith, I'm not committed to the Crown's case in re what happened to Olivia Hope and Ben Smart but I've not yet been convinced by the case that says Scott Watson is innocent of the crime he was convicted of. I have read your book, so you can consider the overall argument of your book (summed up nicely by its title "Trial by Trickery") to be one of the many arguments (or sets of arguments) that have not persuaded me to change my mind. Whilst it is admirable that you want to persuade me of the merits of your case, really, I'm not all that interested. As far as I'm concerned all this started because we (as in the people in this thread) were having a discussion about miscarriages of justice and I expressed some skepticism about the skepticism over the Scott Watson verdict. That really is, for me, as far as I want to take the conversation.

    Also, I'm not in anyway suggesting I have private evidence about the case when I say I know things about it. I was simply saying that I have not come to my view from a position of ignorance. Given my own research interests into conspiracy theories I have read up on the material, because I was given a letter which alleges that the author of "Silent Evidence"was in on the Crown's conspiracy to hide what really happened that night.

    Now, I don't in anyway believe the substance of the letter but I did read end up reading quite widely on the matter, including your book, to see if I could work out why someone might think there is a coded message in "Silent Evidence."

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • HORansome, in reply to Russell Brown,

    Let me put it in slightly simpler English for you, then:

    No body of evidence ever determines one (and only one) explanation. This is because there will be a range of different hypotheses, all of which are consistent with the evidence, that would be explanatory (cf. W. O. Quine, "Two Dogmas of Empiricism"). Only some of those hypotheses will be plausible explanations and, presumably, only one of those explanations will be the best explanation.

    Keith Hunter, in "Trial by Trickery," amasses a body of evidence and suggests that one particular explanation is the best explanation available. However, I don't think his argument (or set of arguments) allows him to come to the conclusion that his argument is the best., Rather, what he shows is that his hypothesis is an explanation that should be considered to be in the pool of plausible explanations for the event.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Keir Leslie,

    Dworkin's views on legal positivism are controversial. So is legal positivism. Arguments that one or the other is the status quo, or simply correct, are likely to fail.

    By this point, you have managed to reduce legality to tautology, and emptied it of any relation to broader society. In particular, this form of legal positivism gives us no reason we should respect the rule of law, something I would really quite like from a jurisprudence.

    he seems to take it that the courts are interesting in fact-finding

    Dear lord, what a mad assumption!

    Since Jul 2008 • 1326 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    he seems to take it that the courts are interesting in fact-finding

    Dear lord, what a mad assumption!

    Except it is a pretty weird assumption when you look at the practice of the courts. Often trials hinge on points of law rather than matters of fact. Often these two activities result in the same outcome (which is nice, since we'd like laws to map onto some construal of right behaviour), but, still, Dworkin's construal of the workings of the court is subject to debate.

    I, personally, haven't really reduced legality to tautology in the same respect that you haven't really, reduced legal guilt to moral culpability. These are live debates in the literature and my reading of it has it that Legal Positivists are pretty much the status quo at the moment (and legal positivism in its modern guise is a pretty finessed theory).

    Legal positivism, in the narrow sense you seem to be defining it as, is only emptied of its relation to broader society if the broader society has no input on the laws of the land. That clearly isn't the case in our society; whilst our judiciary is free and independent it also doesn't make the laws; the democratically-elected parliament does that.

    Indeed, one of the useful notions inherent in positivism of this type is that it explains why the socially constructed laws are meaningful; they reflect society's attitudes and it also explains also why some laws need to be revised/become to be thought of as unjust (which is a problem for many theories about the law), which is that society has changed. What you see to be a flaw in the system I see as being quite a nice sophistication which illustrates how society works.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Russell Brown, in reply to HORansome,

    Let me put it in slightly simpler English for you, then:

    I understood your meaning perfectly well, thank you Matthew. But it seem to me you were using jargon to make your answer seem more substantial than it was.

    I do also think Keith's comment was somewhat intemperate.

    Auckland • Since Nov 2006 • 18800 posts Report Reply

  • Keir Leslie,

    In fact the judiciary does make the law in this kind of legal positivism. (A minor but terminological important point.) Everything else is merely a source of law, and arguably statute law is a comparatively unimportant source of law, especially compared to precedent.

    The courts are, trivially, engaged in a fact finding exercise. (O God, this is brining back horrible memories of 101 essays. Quick! Tell the examiner the ways in which the search for truth and justice may come into conflict!) Once they have determined the facts, they apply the law to them (ok they don't really, but it is an ok model for this argument.) The fact that decisions turn on points of law tells us nothing because in order to tell what law to apply, we must first know what facts there are.

    This division can be seen in the division between first instance (i.e. trial) and appellate work. At first instance, findings of fact are made, and generally can not be appealed. But the findings of law can; and because in general we study the law through judicial decisions, in particular appellate decisions, we tend to overemphasize the importance of findings of law.

    inherent in positivism of this type is that it explains why the socially constructed laws are meaningful

    This just isn't a thing that legal positivism does --- unless you smuggle assumptions into it.

    Since Jul 2008 • 1326 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    Or you are operating with a sophisticated version of LP.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • HORansome, in reply to Russell Brown,

    Given all the provisos I've made in this thread about my view on the Scott Watson verdict, your assumption that I was using jargon to hide an insubstantial point is pretty unfair.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Keir Leslie,

    Given that your legal positivism asserts that judges don't make laws, I am really quite doubtful of any claims for its sophistication.

    Since Jul 2008 • 1326 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    And so we reach impasse where all we're going to do now is pass snide comments

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Keir Leslie,

    It is hardly a snide comment to note that you are not presenting a very coherent theory when, after all, you are not. You did say: ``whilst our judiciary is free and independent it also doesn’t make the laws’’ which is just not true if you are a legal positivist. (If you hold to some natural law theory, or to the old view that judges merely discover the law that already exists, you could say that. But you can’t say that as a positivist!)

    New Zealand is a common law system, and there is a great bulk of law in New Zealand that is not in fact derived from any Parliament. The greater part of the law of torts, for instance, is common law. This is law that is made by judges.

    Since Jul 2008 • 1326 posts Report Reply

  • Islander, in reply to HORansome,

    nd so we reach impasse where all we’re going to do now is pass snide comments

    Possibly.
    I am very interested in your comments visavis expert witnesses.

    Are you actually telling me that specialist knowledge (whether in regard to identifying boats or whitebait) is irrelevant? Compromised by people being expert? Just not up to some statistical survey?

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • HORansome, in reply to Islander,

    I’m not saying it is irrelevant; it is just that, when it comes to eye-witness testimony, expert witnesses turn out not be so significantly better than non-expert eye-witnessesas. The problem really is that we often think eye-witnesses are reliable sources of information, but psychologists can show you that they are not. Expert witnesses (and we're talking here about eye-witness testimony) are somewhat better, but still not brilliant.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • HORansome, in reply to Keir Leslie,

    We’re going to have to disagree on a proper definition of legal positivism, I see. Then again, lots of people do.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • HORansome, in reply to Islander,

    The other factor I should note comes into play here is the time between the person witnessing the event and then their recall of the event. Experts tend to better at identifying things in the moment but typically suffer the same issues the rest of us do with respect to recall, leading questions, et al.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Islander, in reply to HORansome,

    You are confusing 'eye-witnesses' (definition please) with 'experts': an expert on whitebait (I wouldnt quite call myself that - but) would NEVER mistake a glass eel for any kind of 'bait.
    And, a waterman/yachtie/ferry-taxi person would NEVER mistake a single-masted boat for a ketch.
    Time/place/other matters dont actually factor in: you know what you know.
    I'd really like to have some substantive back-up for your claims.
    They amount to waffle in the wind at the moment insofar as I am concerned-

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Keir Leslie,

    Erm. You know, I am really actually confused as to what coherent theory of law you could have which is (a) broadly positivist and (b) rejects the existence of judge-made law in common law systems. I mean, I guess it exists, as a kind of theoretical possibility, lurking at the far edges of the permutation table, but it would seem to me to be the equivalent of the weird cross-breedings of the animal world, a possibility, but one singularly unfitted to actual life.

    Since Jul 2008 • 1326 posts Report Reply

  • Ian Dalziel,

    Christchurch • Since Dec 2006 • 4787 posts Report Reply

  • HORansome, in reply to Islander,

    I'm quite deliberately not conflating expertise with being an eye-witness; experts in a subject area can offer eye-witness accounts just like any other kind of person. Perhaps you would prefer the term "informed testimony" for the eye-witness accounts of experts. The question then is "Is informed testimony any better than eye-witness testimony?" The answer is "Yes, but..." where the "...but..." clause ends up saying something like "In certain conditions such informed testimony is better but often it suffers from the same systemic issues that typical eye-witness accounts do."

    If you want references to this I'll just point you to the work of Daniel Kahneman and Amos Tversky. Their work in heuristics (and the attendant biases) was pretty groundbreaking in the 1970s.

    Tāmaki Makaurau • Since Sep 2008 • 408 posts Report Reply

  • Islander, in reply to HORansome,

    f you want references to this I’ll just point you to the work of Daniel Kahneman and Amos Tversky. Their work in heuristics (and the attendant biases) was pretty groundbreaking in the 1970s.

    Report

    Thank you. I will look it up.

    I am aware of the problems with *eye-witness* reports (the classic gorilla-on-the-basketball-court You-Tube thing) but -while I obviously havent read Kahneman /Tversky yet -I still know that I wouldnt mistake a glass-eel for a 'bait.
    And nor would a boatie confuse a ketch with a single-masted yacht-

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

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