‘Deadly Dilemmas’ by Larry Laudan (2008)

Every so often there is an academic conference that looks different to the rest. It starts with a parade of ordinary-to-the-eye citizens while the professors and researchers and industry experts stare in from the audience. An announcement then booms over the microphone: “These are the innocent men who were sentenced to death, who by good fortune and the grace of God were not executed by the state.” There’s some hushed applause from the onlookers, a few wry smiles, and plenty of self-righteousness. “How can you look them in the eye and still defend capital punishment?”

These conferences are tragically small affairs, made up of those few people who are professionally committed to ridding the criminal justice system of its errors. They are powerful spectacles nonetheless. The cause is noble, and difficult, trying to connect epistemology to the real world in a much too neglected field. But for Larry Laudan these events are also horribly naïve, overpowered by emotional reasoning and a lack of philosophical rigour. The advice he offers the attendees: try instead, if only for a moment, to be “fair, impartial, honest, and thorough”.  

The conviction of an innocent person is perhaps the worst type of error that any institution could make. The devastation it causes upon the individual and his family is bad enough, but the radiating damage of lost confidence in the criminal justice system pushes things much further. It represents the most egregious violation of our social contract, where we implicitly sign over some of our rights to the state, with the state agreeing to defend those rights on our behalf; “life, liberty, and the pursuit of happiness.”

But when the state executes an innocent person, they are, as it were, killing an innocent person! And that is where the analysis should hinge, not on the emotion, on the unease, or on the nightmares of police frame-jobs. What we ought to care about here is the unit of loss, and the size and impact of it.

The expectation of such losses are often factored into the institutions around us, with the occurrence of these errors balanced against other potential errors of different kinds, in different directions. Like wily insurance salesmen, risk assessments are drawn up and an acceptable number – and degree – of these mistakes is decided upon. But when it comes to criminal justice, the mistakes that matter are poorly understood, and those risk assessments unbelievably crude.

Almost all of the analysis tends to focus on false convictions, and just how many of these should be considered too many. William Blackstone set the benchmark for this in 1765 when he proposed that the error ratio ought to be 10 to 1 – better that ten criminals go unpunished than one innocent person is unfairly convicted. Now you may prefer a different number, and prominent philosophers have stepped into these waters over the years with ratios from 1000 to 1, all the way down to 2 to 1. Or you may doubt that choosing a number is in any way relevant, believing that announcing such a thing has no actual impact on the real world error rate. Either way, you are likely thinking much too much about one side of the ratio and not enough about the other.

An innocent person going to prison is an appalling thought, and in the American system today just such errors are happening in between 3.3% and 5% of trial cases. The best source we have for this is the discovery or testing of DNA evidence (post-conviction). It is from those exonerations that we get our first look at the actual false conviction ratio: 3.3% to 5%, or 20 to 1. But this is half the story, most criminal charges are resolved by plea deals and the error rate at trial cannot simply be extrapolated out.

This is also where things become counterintuitive. Those early DNA exonerations were understandably focussed on trial convictions – situations where the convicted person has insisted upon their innocence all along. Yet when this changed, and cases with plea deals were also scrutinised against DNA evidence, something strange happened: the false conviction rates were considerably lower. Whereas many people expected plea deals to be a corrupting factor, pushing innocent people to admit guilt through fear (1 year in prison before trial against the risk of losing at trial and getting 15 years), the opposite was happening.

The reasons for this matter. Contrary to many people’s worst expectations, prosecutors were avoiding pursuing cases where the evidence was strongly in favour of the accused person being innocent, whether it was in trials or in plea deals. And when the evidence was strongly in favour of the accused person being guilty, it was in both parties’ interest to bargain for a better situation: the guilty person for a lighter sentence and the prosecutor to avoid the time and risks of a trial. There was also an important psychological factor at play: for serious crimes (such as the ones being examined) falsely accused people are less likely to plead guilty, regardless of the looming sentence and risk. They are innocent, and all the fear and bullying in the world won’t make them lie and admit otherwise.

Whereas the error rate at trial was 5% at the high end of things, the error rate from plea deals is 0.045%. Combine both those error rates and their prevalence in the American system, and you have an overall error rate of 0.84%. “It is hard to imagine” writes Laudan, “conducting a criminal justice system that makes substantially fewer errors.”

So things are working as they should? The ways in which we have designed the burden of proof are appropriate? No! The ratio that people tend to instinctively worry about is that of convictions to false convictions, but this isn’t what those distant philosophers were concerned about. Reducing the amount of false convictions isn’t really that hard, just keep ratcheting that burden of proof upward to the point where the only people being convicted are those for whom the evidence is completely overwhelming. These are errors of a different kind, but they are still errors within the system, and they tend to go strangely under-noticed.

But the failure to prosecute guilty people is the same as allowing crimes to go unsolved, and the social costs of this can be enormous. And so, it would be better if we simply acknowledged from the outset that many of our efforts to decrease the risk of false convictions means that there will also be more felons on the streets; unpunished, unrestrained, undeterred. We are actively increasing the likelihood that we will become victims of crime.

As it stands in America, you are 300 times less likely to be falsely convicted across your lifetime than you are to be a victim of a serious crime. And for many people working hard to reduce false convictions by “all means possible” this is a completely acceptable figure. After all, isn’t it (to approach the actual dilemma here, the real trade-off) much worse to be falsely convicted than to be a victim? It seems emotionally true until, that is, you scratch ever so slightly at the issue. “In what sense can it be worse” writes Laudan, “to be wrongfully convicted of murder than to be murdered?”

The point is a simple one, step back from the headlines and the academic parades of exonerated citizens, and ask yourself the real questions: “(1) What is an acceptable number of false convictions? (2) What is an acceptable number of crimes?” Then acknowledge that “Neither question can be answered without reference to the other” and that however you dial this thing up, people will suffer and die on one or both sides of the equation.

‘Science at the Bar - Causes for Concern’ by Larry Laudan (1982)

As shifting ideas began to catch the air in the early twentieth century, new laws were introduced across several states in America. These laws were protective of tradition as much as they were of religion, and they all did one key thing: ban the teaching of evolution. For years they sat as garrisons, defending against the encroachment of science and critical thought.

It took decades of silence and repression before the constitution – and the nation’s founding principles – reasserted themselves. It happened with the 1968 Supreme Court Case Epperson v. Arkansas (Arkansas having a strange central place in much of this story) where it was ruled that the state had passed an illegal restriction: “The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read.” The First and Fourteenth Amendments had been violated, and so all such laws were abolished.

Unpleasant but not unusual, this was what most of human history has looked like: the denial of error, the refusal to change, and the suppression of heretics. But it is with the next step in the battle that things get interesting, and epistemological. In 1981, Arkansas sharpened its tools and passed Act 590, or otherwise titled: “Balanced Treatment for Creation Science and Evolution Science Act.”

Missing from that name is the sophistication of what was being done. The protectors of religious tradition weren’t just watering down their demands to make them less of an infringement upon basic liberties, but rather they had been listening closely to the language of their enemies. So as they insisted upon Creationism being taught in classrooms on an equal footing with evolution, they were claiming something important about the nature of knowledge: both theories were equally scientific!

The onus was now upon the other side to say clearly and definitively what science was, and what it was not! A question that had been criminally neglected for centuries (save for a few parochial thinkers at a few parochial universities), and which most practicing scientists couldn’t answer. Something was clearly different, but what was it? What did that demarcation look like?

A year later in 1982, the new law was challenged in the case McLean v. Arkansas. Philosophers were suddenly being consulted for fast and convincing thoughts, and Judge William Overton was tasked with the unenviable job of deciding the “essential characteristics of science”. The ruling was correct and commendable, but as far as Larry Laudan was concerned, it was also “reached for all the wrong reasons and by a chain of argument which is hopelessly suspect.”

Overton saw science as being: “(1) It is guided by natural law; (2) it has to be explanatory by reference to natural law; (3) it is testable against the empirical world; (4) its conclusions are tentative, i.e., are not necessarily the final word; and (5) it is falsifiable.” The first two of these, are categories of “law-likeness”, the last three amount to the very Popperian position that scientific theories be testable and falsifiable – that there is some reasonable way to prove them wrong!

At different points in Overton’s ruling, Creationism is convicted of being dogmatic, non-tentative, stubborn, close-minded, and self-referential; all ways of tiptoeing around the harder line being drawn between science and the rest: Creationism was unfalsifiable! Looking in, Popperians of the day must have been happy, even if no explicit credit was given to Popper or critical rationalism. Laudan was a lone voice from the world of science and philosophy daring to say not only that something had gone wrong with the court’s decision, but also that creationists were being unfairly slandered by it.

The Old and New Testaments are rich with factual claims about the world, about the age of the earth, its geological formation, the variability of species on it, as well as more specific events such as the Noachian flood. All of which are testable, making Creationism falsifiable by the failure of any such test. But after this brief restoration of character, Laudan is finished being a friend to the losing team, and the reason for his defence is let loose: creation-science has committed itself to testable claims, those claims have been tested, and it has failed each and every one of them! “By arguing that the tenets of Creationism are neither testable nor falsifiable, Judge Overton… deprives science of its strongest argument against Creationism.”

Laudan has always had a fascinating way about him, someone uniquely able to irritate and anger the Popperian community: they think he is ignoring their arguments, while he thinks those arguments are unbearably fragile, never connecting with the real world beyond academia. It is true, Laudan acknowledges, that some of what Creationism professes to be is in fact untestable, such as “the claim that man emerged by a direct supernatural act of creation”. But these claims are only untestable in isolation. And that is an impossibly high standard for us to insist upon. “Many scientific claims are not testable in isolation” and are never condemned for it. What matters is that the larger theory, and its consequences, remain testable.

The charge of dogmatism against Creationism (or in Overton’s words, they have “refuse[d] to change it regardless of the evidence”) is as unhelpful as it is untrue. The mistake here happens when people confuse the doctrine with the proponents of the doctrine. The Arkansas law insisted only that Creationism be taught in classrooms, not that Creationists should teach it. The difference matters a lot more than it might appear, and moves in large steps towards making the theory falsifiable for those students listening.

But something remains here for Laudan, something that is being allowed to slip by between all the legal-speak: Creationism has, and does, change! Most adherents today accept greater variability across species, accept challenges and alterations to the story of the Noachian flood, and accept that other scientific discoveries have implications for their theory. These people do not think the same things as their counterparts did fifty years ago – they debate how to assimilate new evidence, and they revise their ideas when necessary.

So if Creationism isn’t as dogmatic as the ruling suggests, what about Overton’s fourth principle of good science being tentative? Creationism might change over the years, and might even be responsive and testable against the empirical world, but with each new position and claim comes an unhealthy sense of absolute certainty. Laudan is having none of this: look at Newton he says, look at the followers of Newton, look at every great person in every great era of science and you will find them “regard[ing] some of their beliefs as so fundamental as not to be open to repudiation or negotiation.” Scratch just a little way into the language, and the happy, ego-fulfilling claims that science likes to make for itself begin to look “exceedingly weak”.

Acknowledging that he might be “nit-picking” a bit here, Laudan is convinced that there is a better way forward for science and knowledge creation. A better, and less convoluted, entry requirement in the form of a question: who has the stronger evidence and the more robust argument, Creationism or evolution by natural selection?

And as simple as it may appear, Laudan’s thesis stands! What is the best way to combat creation-science? Disprove the empirical claims it makes for itself, or simply “pretend that it makes no such claims at all” and act as though the label unscientific should be enough to put the whole messy affair to bed. “However noble the motivation, bad philosophy makes for bad law.”

‘Wittgenstein’ by W.W. Bartley (1973)

“My own interest in Wittgenstein” writes W.W. Bartley, “was awakened when I discovered that this man had actually gone about practicing what he preached.”

That interest had Bartley wandering between remote Austrian villages, climbing over mountain-sized hills, door knocking between schools, houses, and farms, all on the off-hand tips of old ladies; even visiting the then-underground homosexual bar scenes of London and Vienna, looking for anyone who might have known Ludwig Wittgenstein during his poorly understood – post-First World War – “dark decade.”

On a staunch and prescient hunch, what he didn’t do was consult the archives. Feeling strongly that much of what had – until then – been said and reported about Wittgenstein, was riddled with false stories and corruptly attributed philosophy, Bartley indeed found a new man behind the folklore. Someone who never abandoned philosophy (as the tale goes), but who took so seriously his own claims about needing to show certain things rather than just saying them, that he set-out into the world to do just that (as well as formulating his later philosophy).

Wittgenstein’s larger than life back story is allowed to settle into the reader’s imagination without much fanfare, as is the extraordinary writing process behind the Tractatus Logico-Philosophicus, in the mud, the blood, and the trenches, of The Great War. Instead, Bartley kicks things off with its 1919 publication and a man crowned upon his arrival as “the finest philosophic talent of his generation”.

Or as Bertrand Russell put it: “the most perfect example I have ever known of genius as traditionally conceived, passionate, profound, intense, and dominating.”

Carrying around the twin shadows of suicide and guilt (about his sexuality and promiscuity), Wittgenstein lived on the “edge of madness” and battered his few friends with gloomy, depressive, and unmistakably self-indulgent letters; casually letting them know that he had “been feeling morally dead for more than a year…”

But in there too, are Nietzschian clues – little moments of mopey insight that explain the grandiosity of his intellectual project (a philosophy to end all philosophy): “I ought to have done something positive with my life, to have become a star in the sky.” Something so impossibly prodigious that it might exonerate all the things he hated about himself.

In a violation of Popperian methodology, the Tractatus begins without an obvious problem to solve. Whether it is to answer the Kantian hangover about how language is even possible, or the Vienna Circle-inspired demarcation between meaningful and meaningless, or the harder demarcation line between science and non-science, what is clear is that Bartley is full of both hot-flushed admiration and head-slapping scorn.

This scorn comes thickest in those moments when Wittgenstein drops an unexplained, unexampled, absent of criteria, statement onto the page and then walks nonchalantly away as if the job is done. Lacking obvious detail and rigor, and yet sounding profound enough to be quickly quotable (“whereof one cannot speak, thereof one must be silent”), Bartley is unimpressed and asks aloud what so many others dare not: how should we distinguish between silence that is “deep” and silence which “stems from having little or nothing to say”?

He was not the first to have such doubts about the Tractatus, but in being so clear, so direct, and so unprotected by his questions, Bartley turns the atmosphere away from a straightforward academic dispute, and towards the emperor having no clothes. Half taking aim at Wittgenstein, and half at those fawning crowds around him, nodding in desperate approval lest they be accused of being non-geniuses for failing to understand the genius.

Having shown Wittgenstein to be naked (at least in part), Bartley does help to explain the social upheaval that made such mistakes understandable. In the white swell of revolutionary change, the German language at the turn of the century was unmoored and in sudden crisis; “on the verge of collapse”. In the heart of this turmoil, Wittgenstein found his audience – and perhaps his problem to solve – through the presumably solid foundations of Russell’s logical atomism and in the logical theories of Gottlob Frege; someone who could save the German language from an early death.

Then moving from the Tractatus to the Philosophical Investigations, Bartley offers his own – and only – piece of nonsensically dense language: “My view… is this. It is more accurate to, if also a bit misleading, to argue that the movement from early Wittgenstein to the work of the later Wittgenstein is a movement from a pre-critical, pre-Kantian position to a post-Kantian, Hegelian-style position without the benefit of Kant.”

Either way, it was a movement facilitated by six years spent teaching elementary school in the Austrian country-side – a journey into hardship, isolation, and simplicity, about which we “both know too little and too much.” Schoolmaster Wittgenstein lived largely rejected and quarantined by the same villagers he wanted to uplift through his social work. Yet he was clearly loved, adored, and remembered fondly, by the children he taught, challenged, and occasionally beat unconscious.

The Austrian school-reform program was a hard – and long overdue – turn away from the Kaiser-introduced (1805) education system. Gone was the emphasis on rote learning, on memorisation, on repetition, and on the philosophical idea that the human mind was neutral, passive and crude. In its place was a new kind of establishment – the “Working School” – where students would actively participate in the lessons. The hope being, that they would then develop into “independent and original” thinkers: “citizens of a democracy” rather than “passively accepting state decrees and church authority.”

Though far from enthusiastic about these reforms, Wittgenstein saw them as a chance to live by his own commandments (some things just needed to be shown, rather than said). It was also an opportunity to test his philosophy (observing how children learn and how they don’t), as well as to satisfy the romantic ideal that he had attached to the Austrian wilderness and its inhabitants.

He left “bitterly disappointed”, hated by the adults around him as being “dangerous” and “threatening to their way of life”, but with a new philosophy under his arm. The Tractatus – the philosophy to end all philosophy – was wrong!

He returned to Cambridge to all the expectant fuss and pomp that his name carried, but also to a colder philosophical world, much less impressed by his new work than by his old. The most scathing of whom was his friend Russell, who wrote that what he now saw from Wittgenstein was an “abnegation of his best talent”, a “treachery to his own greatness.”

Whereas previously, all of thought was pictorial, now there was a new savannah of language games and imageless thinking to deal with. Something that seems to Bartley as a near-complete plagiarism of the work of Karl Buhler, whom Wittgenstein had almost certainly encountered and read.

But perhaps the most significant defect with the Philosophical Investigations, was that it lacked the reach and boldness, as well as the systematic structure, of the Tractatus; a book that just wasn’t going to trick anyone into thoughts of “greatness”.

Nonetheless, it did correct some previous errors… just not the most important one: “Wittgenstein’s conviction that the solution of the Tractatus was ‘definitive and unassailable’”. And this is where Bartley finally stamps his foot, picking further into the loosening scab of Wittgenstein’s aura until, finally, there’s blood: his criteria are still not properly set, his language games are lacking insight and are never defined, his rules of grammar aren’t rules at all, his descriptions never actually describe anything, and his side-talk about religious belief is embarrassing and unreasoned.

Wittgenstein the man, certainly understood a thing or two about courage, about honesty, about conviction, and about the psychological presentation of brilliance. However, after Bartley, his whole philosophy can now be regarded as little more than “one grand category-mistake.”

‘Why I Am Not a Conservative’ by Friedrich von Hayek (1992)

In a horrible turn of cliché, it is loudly thought of as an early death, a step into fear, sweat, and meek surrender; a betrayal of youth, and of life. Just as loudly, it is also thought to be appropriate, an unhappy but inevitable part of the ageing process, along with dentures, walking sticks, and bingo.

Conservatism has a strange place within our culture, within our primal selves. A philosophy that – unlike so many others – can easily go unspoken and yet understood, without contradiction or confusion. It is also the philosophy that burns on the scrawniest of emotions, sitting alone and lonely, playing a very different game to all the others: an unusual entity whose champions and enemies alike largely agree on what it is! 

So before we begin tearing it down, perhaps it is best to first ask the question, why be a conservative? What could tempt someone into such a – seemingly – boring bed? Answer: the poor behaviour of its enemies. “Most movements that are thought to be progressive”, writes Friedrich von Hayek, in fact “advocate further encroachments on individual liberty.”

But even if voting against a party or a policy is a perfectly admirable and rational thing to do, it still doesn’t bode well for the default choice; supported only as a half-way house between worst and least-worst options. So beyond the awful behaviour of leftist movements and misunderstandings about the use of terms like liberal today (mostly through political appropriation, and odd turns of history such as in America where “it is still possible to defend individual liberty by defending long established institutions”), who are the people who actually fall in love with conservatism, and remain so?

They are people who fear (often rightly so) “widespread” and “drastic” change. Liberalism always “wants to go somewhere else” and naturally this restlessness worries everyone who already likes what they see, feels safe within what they know, or at least worries that change will only make things worse. There are – after all – countless many more ways to be wrong about something, than there are to be right! All around us, error is the natural state of things.

There is a parable (Chesterton’s) about conservatism that people like to throw about, as a sort of defence of their overall tentativeness and allergy to change. It is clumsily written, so I’ll paraphrase: there you are walking in a field and suddenly you come across a fence. You don’t know who put it there, why it was put there, or what its purpose is, but because you are a liberal-minded fool, you immediately decide to tear it down, and only discover these answers later on when the problems arrive, and you could really do with a fence.

The point being, if you don’t know why something exists in the way that it does, then you have no right to destroy it without first finding this out. A fairly prudent and fairly uncontroversial argument. But why should the onus be only upon the liberal to do his research, and not upon the conservative to actually defend the thing that he insists be defended? If you want something to remain as it is, why should you not have to explain why that something is important? This is how scales are weighted in favour of an outcome and an ideology.

It also opens things up to the two ugly – and much harder to love – cousins of conservative thought: “its fondness for authority and its lack of understanding of economic forces.” This second relative might appear out of place in the modern world, as conservatives are never far away from a chance to lavish praise upon economic growth, with all its wonderful achievements. But as Hayek shows, this admiration “generally applies only to the past”, with those people lacking the “courage to welcome the same un-designed change from which new tools of human endeavour will emerge.”

And where courage matters, science is affected. Confronted on a daily basis by our infinite ignorance, we nevertheless have reason to hope, as well as a choice of attitude. As liberals are forced to do, you can face this ignorance head-on, admit to how little you know, and then go searching for new knowledge to fill-in some of that space. Or as a conservative, you can play footsie with your ignorance (admitting its existence only within those people who are wanting to change things), reject and distrust any of that new knowledge, castrate your imagination, and surrender the battle of ideas before a gun has even been fired.

Having well and truly turned the corner here, let’s push further into negative territory and talk about that other little monster from the family tree: fondness for authority. If someone doesn’t like change, then they must like, or at least prefer, things the way they are. This creates an unpleasant attitude toward established power structures and leaders, something that is hard “to reconcile with the preservation of liberty.”

The conservative puts his faith in “wise” and “good” people, those who are entrusted to rule over the rest of us, and so he tends to be “less concerned with the problem of how the powers of government should be limited than with that of who wields them.” And there is your obligatory, hard overlap with the work of Karl Popper; here’s some softer ones:

The conservative does not have a problem with arbitrary power, just so long as it is used for the “right purposes”. The conservative is faithful only to certain political outcomes, not to the political process itself. The conservative believes that coercion is an acceptable tool (the reason why it is “so much easier for the repentant socialist to find a new spiritual home in the conservative fold than in the liberal”). The conservative looks upon differences of opinion as proof of “his mission to ‘civilize’”. The conservative, nostalgic of the past, cannot properly look forward and so cannot properly embrace freedom. The conservative…

There is little doubt that Hayek wrote this – in part – to exonerate his character. Many conservatives erroneously believe that, in the pages of Hayek’s economic work, they have found a fellow traveller – misunderstanding that talk of human witlessness in the face of endless complexity, is not the equivalent of saying ‘don’t change anything’, nor is it the equivalent of ‘only ever change things slowly’. It is simply a caution: ‘beware of what you don’t know!’

Lounging happily in the benefits of change and progress, while simultaneously wanting it all to stop, is a hypocrisy and a superstitious fear which makes conservativism hard to stomach. But the real reason to not be a conservative, is a question of content. On any new issue, the liberal is free to creatively dream-up any, and every, possible solution, and then hopefully settle upon the best option. The conservative only has the one, default, position: don’t change things! Always a handbrake, and never a steering wheel.

This is why they are always seen to be losing the culture wars: when the liberals and the progressives win, it means that an old institution or structure or belief is destroyed and replaced; when the conservatives win, it means only that a new policy or idea doesn’t get born/adopted, which is often less noticeable.

It is also why Hayek is comfortable stepping out onto the ledge, and “doubt[ing] whether there can [even] be such a thing as a conservative political philosophy. Conservatism may often be a useful practical maxim, but it does not give us any guiding principles which can influence long-range developments.”