Buffalo Bull

Issue E.5 — Sunday, 2013.09.22

Judicial Eisegesis

Law and Religion

The two areas of law and religion share many common features. Religious dogma is much like law, in that, when making arguments for or against a position, there is a formal (if often dishonest) ritual involved, that of searching the scriptures, statutes, and existing interpretations to find support for that position. Some authors use common terminology for the process: for example, the words “hermeneutics” and “exegesis” are not commonly found outside of religious scholarship, but when they do so occur it is often in discussions of theories of law and jurisprudence. The sources of law and the sources of dogma are also similar, in that they often admit of multiple interpretations.

Hermeneutics and exegesis have similar but distinct meanings. Both are scriptural interpretation based on the context of the writing. Hermeneutics interprets uses a broader context, including non-textual information, whereas exegesis bases the interpretation on textual context. The meanings of the words are not precise, sometimes they are used interchangeably, and are employed differently by different speakers or writers. The exact definition isn't critical here.

The word, exegesis, comes from Greek and means “leading out”, as in, “the meaning comes out of the text”. As we can almost all attest, however, there are many who practice what is called eisegesis, which means “leading in”. Eisegesis is the process of reading preconceived beliefs into a text; in other words, it is the interpretation of a text to mean what you want it to mean, rather than being honest about what the author intended to say. In religion, the term is pejorative: when you call someone an eisegete, you are disparaging his knowledge and his integrity. You might think of someone who brings out his Bible to prove himself right, not to learn from it; he's an eisegete. The term is also used in Islam and Judaism, so it's not unique to Christianity.

Although the term, eisegesis, is not so much used in law, not nearly so much as exegesis (which is not found much outside scholarly works, anyway), unfortunately there is a lot of eisegesis going on. In fact, it seems to be accepted practice, even among judges who are supposed to be devoid of bias. In fact, in my experiences, most judges are biased one way or another, but not necessarily in ways that seem wrong to most people. However, the most emphatically are wrong, the way the legal system is constructed. I'll explain this as we go.

Let me give an example of judicial eisegesis, then point out the problems: A case comes before a judge. The judge decides what is fair, then writes an opinion to formalize his decision. The opinion includes the legal justification for his decision.

(If you think this is proper behaviour for a judge, then you are completely wrong. It seems innocent enough, doesn't it? After all, the judge is being fair, right? Keep reading to find out why it is highly unjust. The whole truth is worse: the judge knows better, so this is conscious and deliberate malfeasance.)

Logic and Evidence in Trials

We don't really learn much about logic in school. The truth is, the teachers don't understand it, so they cannot teach it. So here are a few basic things to know:

A note about proofs: Despite what you might have heard, there is no such thing as “scientific proof”. Mathematics and philosophy can have proofs, but science, since it relies on uncertain evidence, cannot have proofs. All scientific conclusions are considered by working scientists to be suspect to some extent, so they don't call them proofs. As pointed out above, however, in law, they are called proofs anyway, despite the doubt due to uncertain evidence. A decision is based on whether or not an allegation is proved (beyond reasonable doubt or probably). The decision in a courtroom is not the proof, but may be based on a proof. Decisions and proofs are two different animals.

A trial arises from allegations made in complaints. In the adversarial system used in most U.S. tribunals, each side presents its arguments, with logical arguments and evidence. Each side can confront and challenge the other side regarding these things. Then the judge and jury decide whether the allegations in the complaints are proven or not. Finally, the court decides the remedy to be applied as a result. (There you have it, law school in a few paragraphs.)

Reasoning: Deductive, Inductive, and Abductive

(There are multiple systems of logic, each with different theories, rules, principles, and purposes. We are confining ourselves here to what is commonly used in law, although rare exceptions exist.)

Several kinds of arguments are recognized. The three main kinds are deductive, inductive, and abductive. (If you didn't hear about abductive reasoning in school, then your teacher stopped reading in the nineteenth century.) Only deductive and inductive reasoning are normally used in courtroom arguments, but the other kind is sometimes used before the trial and in detective work.

Deductive reasoning starts with evidence and argues toward a conclusion. You know where you're going, and you set up the argument to demonstrate (hopefully to prove) your case. A deductive argument might be something like, “my client was in Milwaukee that night, he couldn't have committed the murder in Honolulu”. It starts with evidence (he was in Milwaukee), and argues to a the conclusion, even with some steps omitted. (It's obvious he can't be in more than one place at a time, so we skip that.) Deductive arguments always move forward, and the conclusion is as certain as the supporting evidence.

Inductive reasoning involves extension from facts to rules, and this extension entails uncertainty. For example, “Twenty witnesses have said I always went for walks on Saturdays, so why would I have stayed on the day the money was taken?” The argument asks the listener to guess the probability that something would happen, based on other events, hence the uncertainty. The uncertainty is not in the logic, it is in the evidence: if there were more witnesses or if he could prove he had never failed to walk for the previous ten years, the uncertainty might be reduced, but that would depend on the evidence, not on the structure of the logic argument itself. The logic is the same, and is valid, but the weight of the argument depends on the weight of the evidence.

(Note that what is called inductive reasoning here is not the same as what mathematicians and logicians call inductive reasoning. We need not be concerned with the mathematical meaning of this word.)

Abductive reasoning is more complex. It is always (properly, anyway) part of a process. It involves guessing a conclusion, then working backward to see if, of all of the possible conclusions, the one guessed is the most likely. When done correctly, the other possibilities introduced by the evidence must be weighed. It is, most emphatically, not the simple action of “proving” a guessed conclusion from the evidence. Abductive reasoning is mostly used in scientific research when simpler forms of logic cannot be applied. It isn't used in courtrooms: in fact, it might result in proving the initial guess wrong, so it would be stupid to try.

Judicial Ethics

The first point to make regarding our example of judicial eisegesis is based on judicial ethics and the purpose of judges and juries in adversarial systems. As explained already, the purpose of the judge and jury are to weigh the arguments of both sides and decide if the allegations are proven, then to provide a remedy or consequence.

There are several reasons for laws, and perhaps the main one is so that we can know how we are to behave as citizens. Laws aren't the same as morality, but they tell us that in a legal if not moral sense what is the right thing to do in a situation, or maybe what what we should not do. If we follow the law, then we should have no adverse consequences from the legal system.

Judges are expected to act according to a code of ethics, sometimes called a code of judicial conduct. Almost invariably, the first rule or canon of this code is, “a judge follows the law”. It doesn't matter what the law is, he must follow the law. This is more important than being “fair”: the law is supposed to be fair already. The laws are written in advance, so we can know in advance what we can and cannot do. If the judge ignores the law, he is creating a government by whim or desire of the judge, which is not a government of laws. A judge who ignores the law is a tyrant, and, because he is sworn to uphold the law, is dishonest. Furthermore, because the judge receives benefits from his office, if he fails to do what he swears to do, then he is a thief, because he is receiving benefits without doing the required thing in return.

Of course, there is a place for fairness, where the law has grey areas or where there is no applicable law or where the laws conflict. Then it is important for a judge to be fair; in fact, it is required. If he thinks that a law is unfair, then it is his job to search for a higher law to override the unfair law. For example, if a law allows searches without warrants, then it is the judge's obligation to declare that law invalid because the Constitution (a higher law) prohibits searches without warrants. However, he must find the higher law to do this. If he doesn't think the law is fair, then he should quit his job and go work in the legislative branch of the government to change the unfair laws.

(Even when there are grey or missing areas, there is equity. The rules of equity are to be used where there is no applicable law, and developed in some areas such as trusts where no law existed but where fairness demanded a remedy. Centuries ago the principles were condensed into what are known as maxims of equity. Despite their importance — some law was created later to formalize equity, and equity still is applicable — most lawyers and judges couldn't recite a dozen of the maxims to save their lives or, if they have them, their souls.)

So the first and most obvious reason that, in our example, the process was unjust, is that the judge has arrogated to himself powers that he does not have. The law is formed by those we elect to form it, not by those who judge according to it. A judge who decides, without good reason, to override the decisions of dozens or hundreds of Congressmen or Senators or legislators is, by violating the code of ethics, guilty himself of breaking the law (code of ethics), dishonesty, theft, and, it can be argued, harrassment and other crimes.

What is the harm, you might say, if the judge has some idea of what is fair, and then tries to remain open-minded as he listens to the arguments, believing himself willing to change if he is wrong? In fact, there is plenty wrong with forming any kind of opinion in advance of hearing all of the arguments. First, not far down from “following the law” in the code of ethics is the prohibition against prejudice and bias. Basically, these are prohibitions against forming or holding any opinions in advance. So a judge who has an opinion, tentative or not, regarding the correct decision is in violation of the code of conduct or code of judicial ethics. Second, such a bias or prejudice, tentative or not, makes the judge vulnerable to a host of tactics available to the parties and their lawyers, because, in turn, he is much more likely to make certain kinds of errors.

Judging can be a difficult and tricky job. It may be hard to sort out the arguments, weigh the evidence, and understand what really happened and should happen based on the law. Effectively, bias and prejudice, even if from some misplaced sense of fairness, are handicaps. Sitting in a hearing or on a case with bias and prejudice are the moral equivalent of driving while drunk, they make it more likely that an error will occur. If a drunk person needs alcohol (or other chemicals) to make it through life, he ought not be driving. If a judge needs bias or prejudice to make it through a case, to make it easier to figure out what's going on, he ought not to be judging. We don't need judges drunk on bias and prejudice, we need sober judges.

The next section will provide a very abbreviated look at some, but not all, of the logical errors which can arise from prejudice. But first, we ought to remember the environment in which courts and the judicial system operate: a private club of lawyers, who are trained to lie and to deceive.

There is a joke about lawyers. (One of many such jokes.) It goes like this: Question: How can you tell if a lawyer is lying? Answer: His lips move.

Lawyers, for the most part, don't see their own dishonesty. That is due, in large part, to the definition which they have for lying, which is different from that of most people. The popular definition, in turn — including the one used in our dominant religions — is far from what it ought to be. We tolerate a lot of lying, in fact, we crave it, and see no problems with it. I have written elsewhere about intellectual bullying, but let me summarize the definition again. If X physically beats up Y merely because he can, because X is stronger than Y, we call X a bully. However, if X intellectually beats up Y by being more clever, smarter, or knowledgeable than Y, we praise X as being clever, smart, and knowledgeable. Ethically, what's the difference?

Society doesn't think about this. Religious people in our culture pick and choose what tenets and rules are important to follow. We say it's not acceptable to kill innocent children, but it's all right to hire politicians who direct the military to do so. We say it's not right to steal from people, but we put thieves on television and treat them as celebrities. In the Bible, Jacob, who took advantage of his brother and deceived his father, is held in high esteem by several major religions. So our standards are, to begin with, very low, and we aren't taught to question the rightness or wrongness of intellectual bullying. It's not much different from belonging to a gang or crime family which thinks that rape and drugs and killing are fine, we just don't think about it, it's normal.

Despite the low moral tenor of society in general, we all realize that some situations, such as trials, call for a little elevation in moral tone. Maybe we don't regard the ethics of the religions too highly (why should we?), but trials are supposed to be venues where the truth is discovered. So how do we explain lawyers who work for the highest bidder? (Are the rich more innocent than the poor? Do they deserve more and better justice?) How do we account for lawyers who fail to mention important laws and evidence in their arguments? (Believe it or not, the ethics rules require lawyers to mention the significant laws in their briefs, even if they favour the opposing side. Have you ever seen any lawyer ever punished for failing to do so?) Why must lawyers adhere only to a strict definition of lying (flat out, bald-faced lies are forbidden) but are free to mislead, ignore relevant facts and arguments, confuse, use propaganda techniques, and use any other trick up their sleeves — short of outright, direct lying — to zealously represent their clients? There are ten thousand ways to lie, which don't involve simple mis-statements of fact, and lawyers use every one of them.

Even where lawyers stretch the rules to and beyond the point of breaking them, they are rarely punished. Unlike we civilians, they belong to a private club, the bar association, which is really just a lawyer's union, and for them justice is dispensed by the bar and its members, not by the same mechanism used to control the rest of us. If, as an engineer, I am accused of violating some complex technical rule, or if there is a claim that I have broken some ethical principle of my profession, then my case goes before the courts. Doctors accused of malpractice, and other professionals with jobs requiring years of training, answer to the courts. Lawyers, however, have special proceedings. Other professionals are to be judged by ordinary citizens, but lawyers are to be judged by lawyers only.

There are reasons for mechanisms to promulgate and to enforce laws. It's obvious to almost anyone that, if the laws aren't enforced, that more people will break the laws. So it should be no surprise that, with no effective check on their behaviour, lawyers break the rules all the time.

What about judges? Well, most of them are lawyers. To judges, the dishonesty is normal. That goes even more for Senators and members of Congress, who are also mostly lawyers. Where do you think they learned to work for the highest bidder or campaign contributor? As Tom Leher joked about plagiarism, “Only be sure always to call it, please, research.” Thus, lawyers call their lying, “zealous advocacy”.

One last remark before moving on: the corruption of the legal business (I hesitate to call it a “profession”) is based on the destruction of the jury system. When our country was founded, juries would decide how to interpret the facts and the law. Now the juries are left with interpretation of the facts only, with the law being left to lawyer-judges. The theory behind this is that the law is too complicated for laymen. Then how are we expected to obey a law which is too complicated for us to understand?

Logical Errors Arising From Prejudice

An important point about errors is that we do not realize we make them. Let us leave out corruption, deliberate dishonesty, for a moment. There is plenty of deliberate dishonesty, and we all think we know what that means. (I would argue that failure to maintain the competence to avoid the mistakes is mostly deliberate dishonesty, too, but that's another issue.) We call them mistakes because they are seen as unintentional. We call them errors when we don't see them as being deliberate.

The lack of proper training in reasoning among the general population is sad but consistent with the general descent of our citizens and their educational system into sub-mediocrity. However, one would expect lawyers (hence judges) to have some more knowledge of this topic than they do. I will illustrate with an example regarding inductive reasoning, and if I were a betting man, then I would wager that it's a trap that almost all sitting judges would fall into.

Suppose that breathalyzers give incorrect results 5% of the time. Suppose that one out of a thousand drivers are drunk. A randomly chosen driver fails a breathalyzer test. What are the odds that the suspect is drunk?

The correct answer is, only one out of fifty.

Almost everyone who isn't a statistician or who hasn't written a spam filter will come nowhere near to getting this one right. The correct analysis is not to look at it as, “What are the odds of the suspect being drunk?”, but rather to see it as, “What are the odds of the breathalyzer being wrong?” If the breathalyzer is wrong 5 percent of the time, then it will find fifty drunks out of a thousand drivers, but we know that only one time out of a thousand will there be a real drunk. In other words, it will be correct only one out of fifty times.

(If you want to know one reason why it takes so long to get through airport security, remember that few TSA employees can spell “Bayesian inference”, let alone define it.)

So, hopefully, we now see how poor we are at logical reasoning, and can move on to other errors without so much quantification.

It is important to note that all of the biases and errors on the following list are recognized as common by controlled, scientific experimentation. A non-trivial number of people have them, and there is no reason to believe that judges do not have them.

Belief bias
The tendency not to consider an argument strong, if you don't believe the conclusion likely. For example, if you think the defendant is too nice a guy to have committed a crime, you will discount the arguments that he did. The strength of the argument has nothing to do, however, with the believability of the conclusion: if the evidence shows he probably did it, then he probably did it.
Outcome bias
This is the tendency to believe a decision was bad, based on its bad outcome, or good, based on its good outcome. When someone acts, they are expected to act reasonably. If they act reasonably but it turns out later they made the wrong decision, then we tend to believe they acted unreasonably, and vice versa. Acting reasonably is an important defense against some accusations.
Clustering illusion
This is the tendency to see patterns when there are none; you are more likely to see such patterns if you are biased or prejudiced.
Omission bias
The tendency to judge harmful actions as more harmful that inactions which are equally harmful.
Semmelweis reflex
The tendency to reject arguments in opposition to beliefs you already hold. This is related to a number of parallel errors, such as selective perception (choosing what you see and don't see based on pre-conceived beliefs), subjective validation (believing something is true if your preconceived notions require it to be true), expectation bias (the tendency to reject conclusions and evidence which go against what you already believe), and many others
In-group bias
The tendency to believe members of your own group more than others. (Think lawyers and judges.)
Bias blind spot
The tendency to think of yourself as less biased than most others. Of course, most people think they're better than most others at avoiding bias, which can't possibly be true.
Anchoring bias
The tendency to focus on one or a few factors, and to pay less attention to others which are equally significant. Sometimes it's hard to hold everything in your head, so you don't even try.
Framing effect
The tendency to give different weight or validity to arguments or information, depending on who they come from. If you don't like a witness, even if he is a stranger, you might discount or disbelieve what he says. In fact, you might even tend to believe the opposite, even without any rational basis for doing so. This also includes the tendency to evaluate arguments differently depending on how they are presented. Slick graphics and polished presentations are more believable than rough recitations of the same information.
Just-world hypothesis
This is the belief that there is more justice in the world than there actually is, which tends to cause you to think that a victim was somehow deserving of his fate.
This is classical bias against a person depending on the group he comes from. It includes common racism and bigotry as those terms are usually understood.
Negativity bias
The tendency to give more weight to negative than to positive events or actions.

This is just a small number of examples from a much longer list of common biases and errors.

The point of this list is to convince you that there are a lot of reasons to suspect that a judge, especially with prejudice and bias to begin with, will not be fair in evaluating and weighing the arguments of the parties. Hopefully, when reading this list, you will have seen one or more of these biases you recognize in yourself. Since you probably believe you are less biased than others (you have a bias blind spot), then you will realize that others also have even worse biases. (See, I just employed an argument from propaganda and you probably didn't notice it.)

This is also an argument that we need to strengthen juries, because in a group of people these biases may not be universal. If some of the jurors have a certain bias, for example, and have good intentions, then the other jurors may be able to point out the error and succeed in having the erroneous jurors correct their perceptions or conclusions. That is one of the reasons why appeals exist — to correct errors — and review by others at the time of a trial is more efficient and just than later correction. Note that in the classical Athenian democracy, offices were often held by randomly-selected citizen committees. The use of committees as office holders helped reduce errors, since it was less likely that an entire committee would make a mistake than it was that a single individual would make that mistake.

Correct Prejudice

Suppose a judge were prejudiced, and it were to turn out that his prejudiced opinion was correct. What would be wrong with that situation?

The way to know if the judge was correct is to examine the results from a fair trial. If the judge was biased or prejudiced, then there will not have been an honest trial, so how can we know that he was ultimately correct?

Note: Corrected some grammar and typographical errors and clarified an example, 2016.11.21.

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