Quotulatiousness

December 11, 2014

David Friedman on the historical uses of torture in legal situations

Filed under: Greece, History, Law — Tags: , , — Nicholas @ 06:50

David Friedman discusses a few of the legal systems under which torture was not only possible, but omnipresent:

The use of torture to extract information is not a new idea. Under both Athenian and Roman law, slave testimony could only be taken under torture. Presumably the theory was that slaves were interrogated in order to get evidence against their owners, the owner had ways of putting pressure on the slave, so torture was needed to get the slave to tell the truth. In Imperial Chinese law, not only the defendant but also witnesses could be tortured. In that system, and I think also in some legal systems of medieval and renaissance Europe, a defendant could only be convicted by his own confession. Torture was one way of getting it.

The argument against torture, that the victim will say whatever he thinks will end it whether true or false, is also old — people in the past were not stupid. Our main source of information on Athenian law consists of orations written by professional orators to be memorized by a party to a law suit in a legal system where there were no lawyers and each party had to represent himself. There is one oration which claims that slave testimony under torture is perfectly reliable, that there has never been a case where it turned out to be false. There is another making the obvious argument on the other side, that such testimony is worthless since the slave will say whatever the torturer wants him to say.

They were both written by the same orator.

People in other legal systems that used torture were also aware of the problem. There is a collection of Chinese cases compiled in the 13th century for the use of magistrates. Many of them are cases where a clever judge realizes that an innocent person has been forced to confess under torture and figures out who is really guilty.

That raises an obvious question — if they saw the problem with torture, why did they continue to employ it? One answer is that extracting information might only have been an excuse, that the real purpose was to punish someone without having first to convict him. That is a possible explanation in some contexts, including the current case of torture by the CIA. But it does not explain contexts where the person being tortured was not the suspect but a potential witness.

A second possible explanation is the belief that a competent interrogator could distinguish a real confession from a fake one. That strikes me as the most likely explanation in the Roman and Athenian cases, where it was the defendant’s slave, not the defendant, who was being interrogated.

A third explanation is that torture might produce information that could be checked. That is the situation in the hypothetical cases sometimes offered in defense of the use of torture — the suspect is being forced to say where the kidnap victim, or the terrorist time bomb, is concealed. More plausibly, to say where the loot is hidden.

“Eyewitnesses” and the human mind

Filed under: Law, Liberty, Science — Tags: , , , — Nicholas @ 00:04

Maggie McNeill discusses some of the problems we encounter when we depend on “eye witness accounts” of events:

If you haven’t yet read my research paper, “Mind-witness Testimony”, you really ought to […] The Reader’s Digest version is:

    … The human mind doesn’t passively record events as a camera does; memory is an active and dynamic process which retains information by fitting it into schemata, mental frameworks which shape our thinking and give meaning to perceptions … The same psychological mechanism which causes us to find pictures in Rorschach’s inkblots also causes us to fit memories into the complex web of schemata by which we interpret the world. And just as we ignore those topological elements of a cloud or inkblot which do not fit the meaning our minds have imposed upon it, so do we forget or distort elements of a memory which fail to conform to the schema in which we have embedded it, or even invent elements which were not in reality present, but which the schema predicts should be…The human mind often completely fabricates memories in order to impose conformity with one’s weltanschauung. One simple example involves police lineups: people will often identify the man whom police imply (subtly or overtly) is their preferred suspect because they believe police to be expert assessors of guilt who would never implicate someone falsely, and this schema of police authority and infallibility actually shapes their memories, sometimes to the point of identifying a person who is later proven to look absolutely nothing like the actual criminal…

In witch hunts of both the classic and modern varieties, hypersuggestible people such as children, the mentally ill, the emotionally needy or the severely traumatized can be induced to “remember” all sorts of fantastic things which are not even physically possible, much less grounded in actual events; when they repeat these “memories” in court (or in front of audiences hungry for “sex trafficking” narratives) they are not lying in the strict sense, but merely playing back a script that was written into their memories by processes such as suggestion, group polarization, stereotypic conformation, guided imagination, abusive interrogation tactics and others discussed in my paper. Though the concept of “recovered memory” has been discredited and most reasonably-well-informed people understand its role in driving the Satanic panic, few have yet connected the dots to recognize “sex trafficking” narratives as produced by the same processes. However, as the public begins to recognize driving the Satanic panic, few have yet connected the dots to recognize “sex trafficking” narratives as produced by the same processes. However, as the public begins to recognize the fallibility of human memory, it’s inevitable that outlandish, evidence-free stories such as those told by Somaly Mam, Chong Kim and Theresa Flores will be treated with greater skepticism.

Megan McArdle on whether we should “automatically” believe rape accusations

Filed under: Law, Liberty, Media, USA — Tags: , , , — Nicholas @ 00:03

Megan McArdle isn’t impressed by the statement from Zerlina Maxwell in the Washington Post: “We should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.”.

Where to begin with this kind of statement?

For one thing, even an outlandish accusation would not exactly be cost-free; it could be devastating. There would be police interviews, professional questions. As Maxwell blithely notes in the piece, the accused might be suspended from his job. Does he have enough savings to live on until the questions are cleared? Many people don’t. What about the Google results that might live on years after he was cleared? Sure, he can explain them to a prospective girlfriend, employer, or sales prospect. But what if they throw his communication into the circular file before he gets a chance to explain? What about the many folks who will think (encouraged by folks like Maxwell) that the accusation would never have been made if he hadn’t done something to deserve it?

But while the effect on the accused is one major problem with uncritically accepting any accusation of rape, it is not the only problem. There’s another big problem — possibly, an even bigger one: what this does to the credibility of people who are trying to fight rape. And I include not only journalists, but the whole community of activists who have adopted a set of norms perhaps best summed up by the feminist meme “I believe.”

[…]

So let’s look at how these sorts of rules are actually being applied to rape victims on campus. Emily Yoffe’s new article on how these cases are being handled is an absolute must-read to understand this landscape. Seriously, go read it right now and come back. I’ll still be here.

What do you see in this article? People are frustrated by rape on campus and want it to stop. Their frustration is righteous, their goal laudable. In the name of this goal, however, they are trying to drive the rate of false negatives down to zero, and causing a lot of real problems for real people who are going through real anguish that goes far beyond weeping in the doctor’s office. The main character is a boy who had sex with a friend. According to his testimony and that of his roommate (who was there, three feet above them in a bunkbed), the sex was entirely consensual, if extremely ill-advised. According to Yoffe, after the girl’s mother found her diary, which “contained descriptions of romantic and sexual experiences, drug use, and drinking,” the mother called the campus and announced that she would be making a complaint against the boy her daughter had sex with. Two years later, after a “judicial” process that offered him little chance to tell his side, much less confront his accuser, he is unable to return to school, or to go anywhere else of similar stature because of the disciplinary action for sexual assault that taints his record.

As I’ve written before, the very nature of rape makes these problems particularly difficult. On campus, especially, sexual assaults usually offer no physical evidence except that of an act that goes on hundreds of times every day, almost always consensually, at those campuses. It involves only two witnesses, both of whom were often intoxicated.

London’s Transport System During World War Two – 1941

Filed under: Britain, History, Railways, WW2 — Tags: , — Nicholas @ 00:02

Published on 31 Mar 2013

Filmed after the start of the Blitz, ‘City Bound’ is an exploration of the daily commute into London from the suburbs in 1941.

‘Between half past five and ten o’clock each morning five million people are moved from home to work by London’s transport system. Before this can be done, underground and overground transport must be cleaned and refuelled. Then from the outer ring of London, past green fields and suburban gardens, the move into London begins. Trains, motor omnibuses, and electric trams bring hundreds of thousands into the centre of the city, to work in the shops, offices, and factories of the largest city in the world.’
(Films of Britain – British Council Film Department Catalogue – 1941)

QotD: Favourite expressions of the Emperor Augustus

Filed under: Books, Europe, History, Quotations — Tags: , , — Nicholas @ 00:01

“What about Apollo?” interrupted Vinicianus. “I never heard that Apollo was married. That seems to me a very lame argument.” The Consul called Vinicianus to order. It was clear that the word “lame” was intended offensively. But I was accustomed to insults and answered quietly: “I have always understood that the god Apollo remains a bachelor either because he is unable to choose between the Nine Muses, or because he cannot afford to offend eight of them by choosing the other as his bride. And he is immortally young, and so are they, and it is quite safe for him to postpone his choice indefinitely; for they are all in love with him, as the poet What’s-his-name says. But perhaps Augustus will naturally persuade him to do his duty by Olympus, by taking one of the Nine in honourable wedlock, and raising a large family — ‘as quick as boiled asparagus’.”

Vinicianus was silenced in the burst of laughter that followed, ‘quick as boiled asparagus’ was one of Augustus’s favourite expressions. He had several others: ‘As easily as a dog squats’ and ‘There are more ways than one of killing a cat’ and ‘You mind your own business, I’ll mind mine’ and ‘I’ll see that it gets done on the Greek Kalends’ (which, of course, means never) and ‘The knee is nearer than the shin’ (which means that one’s first concern is with matters that affect one personally). And if anyone tried to contradict him on a point of literary scholarship, he used to say: ‘A radish may know no Greek, but I do’. And whenever he was encouraging anyone to bear an unpleasant condition patiently he always used to say: ‘Let us content ourselves with this Cato’. From what I have told you about Cato, that virtuous man, you will easily understand what he meant. I now found myself often using these phrases of Augustus’s: I suppose that this was because I had consented to adopt his name and position. The handiest was the one he used when he was making a speech and had lost his way in a sentence — a thing that constantly happens to me, because I am inclined, when I make an extempore speech, and in historical writing too when I am not watching myself, to get involved in long, ambitious sentences — and now I am doing it again, you notice. However, the point is that Augustus, whenever he got into a tangle, used to cut the Gordian knot, like Alexander, saying ‘Words fail me, my Lords. Nothing that I might utter could possibly match the depth of my feelings in this matter.”

Robert Graves, Claudius the God, 1935.

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