J*******g
发帖数: 8775 | 1 【 以下文字转载自 LeisureTime 讨论区 】
发信人: cjdlx (五柳), 信区: LeisureTime
标 题: 请飞天评论：from science to law
发信站: BBS 未名空间站 (Sat Jan 9 20:53:52 2016, 美东)
首先，欢迎飞天学长回来灌水，希望闭关期间一路过关斩将，顺利圆满。
然后，请学长评论一下二楼的这篇评论。理查德·道金斯大概是这个世纪大众最熟悉的
生物学家了，不知道你们专业人士如何看待他的以基因为核心的进化论思想？
最后，这篇评论中提到道金斯犯了三个关于法律的common fallacies。Crime Fallacy
and Guilt Fallacy我都能够理解，但是最后那个Truth Fallacy还是让我大开眼界。
我一直以为science的根本是找出truth，法律也应该如此，读完这篇才明白，法律还要
考虑发现truth的成本，所以主旨在于结束争端。
不知道一个曾经的科学家，今日的律师，如何看待那个trade off: Finding out what
really happened, as opposed to ending the dispute? | J*******g
发帖数: 8775 | 2 记得本版有几名反基是Dawkins的崇拜者。
发信人: cjdlx (五柳), 信区: LeisureTime
标 题: Re: 请飞天评论：from science to law
发信站: BBS 未名空间站 (Sat Jan 9 20:55:40 2016, 美东)
Richard Dawkins’ Law Delusion
AIX-EN-PROVENCE – 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 ten
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. US 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 tradeoff: 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.
原文链接在此：
https://www.project-syndicate.org/commentary/richard-dawkins-law-delusion-by
-ronald-sokol-2015-12?utm_source=Project+Syndicate+Newsletter&utm_campaign=
efde99a73b-Reinhart_A_Year_of_Sovereign_Defaults_1_03_2016&utm_medium=email&
utm_term=0_73bad5b7d8-efde99a73b-93837929 |
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