What are the 'laws of nature', the natural laws which underly the thing which we perceive as natural justice?
Aristotle discussed natural justice in terms of what 'ought to be'. His view was that if particular rules of procedure are followed then the outcome of a procedure will be just. There is a great deal of circularity in this form of argument. Circular arguments and arguments about what 'ought' to be are not scientific arguments.
This article is intended as a topic for scientific discussion. The suggestion is made that there are scientific principles which underly our perceptions of what constitutes fairness and justice in both legal and scientific procedures and findings.
One way in which science operates is to observe a number of instances of some thing or process and then seek to find out what features or principles exist in common. This is exactly what old time jurists did with the records of legal cases: they sought common principles for future guidance. Common law is not - as widely believed - the law of the common people, or the laws held in common in different regions. Rather, it is the law as decided in previous court cases, that is to say: the law as derived from a study of what the law has done in the past.
The fact that common features in cases were discovered by a scientific process does not imply that law is a science. However, there is much about law that is scientific, or at least logical. Further, an examination of the procedures used in law and the procedures used in science shows them to have a prominent feature in common: the discovery of facts.
The true facts concerning any matter at all cannot come to light if certain conditions are not met. That is to say that, just as a chemical or physical change cannot happen except when specific conditions are met, so the discovery of fact cannot happen except when specific conditions are met.
This article discusses those conditions: the sufficient and necessary conditions for the discovery of fact.
If you study a system in order to determine the rules which underlie its operation then you are conducting a scientific investigation. The system under investigation may be a natural system or a human created system: a tree or a tractor; a solar system or a banking system. It matters not. Anything more complex than the wheel, the lever, the inclined plane, etc. may be viewed as a system.
There are many systems in human societies. Our behaviour is so complex that we have many ways of exchanging our ideas and our products. Peer review, trade, education, health care, jurisprudence: all are systems. The focus of this article is jurisprudence, but - mutatis mutandis - the scientific methodology is applicable to the study of any human system - or indeed any system.
The purpose of scientific investigation of any system is to discover what natural rules or laws underlie its operations. It is important to note in the case of human systems that the investigation is not concerned with any human-made rules about how the system ought to work. The topic of investigation is how the system does in fact work. Thus, in the study of human systems as in the study of natural systems: the concept of purposeful design is irrelevant. It bears constant repetition: the purpose of the scientific study of a system is to determine what it does, not what it ought to do or what it may have been designed to do, or even if it was in fact designed.
Discovering procedures for the discovery of fact
The essential difference between law and science is this: science seeks to discover fact as an end in itself; law seeks to discover fact in order to determine whether or not some form of personal or social harm has been done.
It should not need to be stated that if the law uses procedures for the discovery of fact which are not scientific then no scientist worthy of that title will accept that the outcome is scientifically justified. But how can we determine that a procedure is scientific? What procedural conditions must be satisfied?
Let us begin our discovery by examining two scenarios: a and b.
Scenario a) Suppose that multiple observers observe and freely discuss the reactions of humans to various substances. We can make deductions about tolerable levels of these substances in various contexts. Having discovered principles of what constitutes tolerable or harmful levels, we make our findings public. Publication does not constitute closure of the topic. Discussion continues and new data refines our understanding of the principles discovered.
Scenario b) Suppose multiple observers observe and freely discuss the reactions of humans to various levels of state interference in their day to day activities. We can make deductions about tolerable levels of these interventions in various contexts. Having discovered principles of what constitutes tolerable or harmful levels, we make our findings public. Publication does not constitute closure of the topic. Discussion continues and new data refines our understanding of the principles discovered.
The common features of scenarios a and b are these:
A) a thing under investigation;
B) multiple observers;
C) free discussion;
D) collection of evidence;
E) discovery of principles;
F) publication of findings.
These are necessary features of the scientific method. They are also necessary features of natural justice. I suggest that they are the sufficient and necessary conditions for the discovery of facts. The order in which these principles are presented here is important, as we shall see.
In the above scenario b, I make mention of state intervention. This term is deliberately wide in scope. It covers, but is not restricted to, the regulation of civil life and commerce by means of laws, taxes and enforcement. In the domain of law, generally, we may assume that we are here studying the procedures of arrest and trial - but the principles or rules we are discussing are of much wider application.
Natural Justice As Science
The term 'natural justice' is often heard in legal circles. It is generally used in the very loose sense of 'moral principles' or 'self-evident truth'. Science is about what is found to be: it is not about what ought to be. There is no 'self-evident' truth in science: nothing is accepted as fact without a sufficiency of evidence. Is there any evidence to support principles of natural justice as universal and verifiable laws? I suggest that there is a sufficiency of such evidence.
Natural justice is not limited to courts of law, but it is most readily understood in the context of courts of law, so we begin our studies in those venues.
It is a universal expectation that our courts of law shall operate with fairness and justice. This expectation is about 'what ought to be', and not 'what is'. However, if we look for a 'what is' in back of such expectations, we may find that the 'what ought to be' has firm roots in the laws of nature which govern human psychology. I shall try to demonstrate this by examining in more detail the components listed above.
A - a thing under investigation
The story 'The Trial' by Franz Kafka is widely known. The story describes the arrest , trial and execution of a man who is never told what it is that he is supposed to have done wrong. There are surely very few people in the world who fail to intuitively understand the principles of natural justice which the book so vividly illustrates. One such principle is, of course, that a person charged with anything at all has a right to present a defence. The science here lies in rock solid logic: it is illogical to expect any person to be able to mount a legal defence if they have never been told what crime they are supposed to have committed.
It is not sufficient in a scientific process to merely have a matter under investigation if there are participants who do not know what it is that is being investigated. Suppose a group of science students is told to investigate something but are not allowed to know what it is they are supposed to be investigating. Their tutor would be thought to be mad. Nothing can be investigated scientifically or otherwise if the thing to be investigated is not divulged.
1st scientific principle of natural justice -
where one or more participants to the process of determination of fact had no knowledge of the thing being investigated, the purported determination of fact was not scientific.
It is this kind of irrationality in Franz Kafka's The Trial which makes the story seem so surreal. Kafka's original German title of 'The Trial' was 'Der Process'. In thinking of the process of law the term 'due process' springs readily to mind. What, then, is due process? Due process is more than a mere formality of conducting a trial of the facts and the law. The term implies something of justice and fairness. Now, justice and fairness need not be viewed merely as 'what ought to be'. If the principles of due process are examined scientifically it will be found that due process is the application to the finding of fact of the set of principles or rules discussed in this article.
B - multiple observers
There is a principle of natural justice which states that justice must not only be done, but justice must be seen to be done. The requirement that justice must be seen to be done is met when the components of the formal processes of law are observed in their operations by as many observers as possible. This means that both sides of the contest have the same rights to observe the evidence and procedures. It also means that the general public has a right to observe the evidence and procedures. If an investigation of fact is conducted in secret, then the public assertion that the finding is accurate and the public assertion that the finding is inaccurate must logically carry equal weight. Fact is determined by the open presentation of data and procedures. A secret trial does not determine facts, q.e.d.
There is a parallel here in science. It is as true of the principles of natural law as it is true of the principles of science that if procedures and data are not available on request to all observers with a legitimate interest in the matter at hand, then any finding based on those procedures and data may be viewed with suspicion.
2nd scientific principle of natural justice -
If any part of any procedure for the discovery of fact was kept secret then the facts were not found in a scientific manner.
This principle has a corollary -
It is axiomatic that breach of the first principle of natural justice means that some information is kept secret. It follows that a breach of the first principle constitutes also a breach of the second principle.
C - free discussion
This component embraces the concept of freedom of speech. However, absent the right to be heard; absent the right to discuss, freedom of speech is of no value.
In both science and law it is imperative that all views are heard. If any evidence is suppressed then it is axiomatic that the procedure of discovery of fact is fundamentally flawed, hence any finding is of no scientific value. I shall illustrate this very important idea with some little known facts about a well-known case.
When Galileo saw with his own eyes strong evidence in support of the widely held scientific theory that the Earth circles the Sun, the supporters of established church doctrine sought to deny him a voice. This episode in the histories of both science and law arose from the establishment view that only experts in theology are allowed to have opinions about ultimate truths.
The problem of only one side of a discussion being allowed to produce expert evidence can lead to the illogical situation that what was false yesterday by decree may become true today by decree. That way of proceeding to establish the facts is very Orwellian - and it is not at all scientific.
This is how the church established the 'truth' which denied Galileo the right to believe the evidence of his own eyes. In 1209 the Provincial Council of Paris forbade the teaching of Aristotelean philosophy. In 1228 Pope Gregory IX railed against Aristotle indirectly by speaking against the opinions of philosophers who endeavour to explain revealed truths by 'false and worldly science'. By 1231 Pope Gregory IX had come to view Aristotle in a less jaundiced manner. He once more forbade the condemned books to be read generally, but instructed that the books should be examined and purged of every suspicion of error. In this context, 'error' meant anything which appeared to go against the authority of the church experts in matters of truth. Thus, from being rejected by the church, Aristotle's writings came to be accepted - and, by the times of Galileo, treated as unarguable truth.
No human, and no human group, ever has perfect knowledge. This is a fact whether from the ultimate 'fuzziness' of human logic or from the perception that only an all powerful creator can have perfect knowledge.
There is a legal maxim which is fully applicable to science: audi alteram partem - hear the other side. The Galileo case is a striking example of what happens when this principle is ignored. Galileo produced observational evidence in support of the growing scientific consensus view that the Earth orbits the Sun. The established church banned discussion of the theory. That ban did not keep the theory from becoming established. It did, however, damage the good name of the church.
The Galileo affair demonstrates a simple truth about the operation of any system whose purpose is the discovery of fact: the determination of fact requires the considered and impartial examination of all relevant and available evidence. This is true in the domains of both science and law.
3rd scientific principle of natural justice -
If any participant to the process of the finding of fact was kept from presenting evidence then the facts were not found in a scientific manner.
Breach of any preceding principle leaves a participant without the means to know what may or may not constitute evidence.
It is axiomatic that any breach of a preceding principle constitutes a breach of the 3rd principle.
D - collection of evidence
In the context of science and law, the purpose of the collection of evidence is to use it in support of the formulation, confirmation or rebuttal of a theory. The evidence must be relevant to the matter under investigation. Obviously, what constitutes evidence depends on the matter being investigated. It follows that if the matter being investigated is not known, then relevance cannot be determined and thus evidence cannot be collected to any known purpose.
4th scientific principle of natural justice -
If any participant to the fact finding process was kept from collecting evidence or kept from knowing what may or may not constitute relevant evidence then the facts were not found in a scientific manner.
Breach of any preceding principle leaves a participant without the means to know what may or may not constitute relevant evidence and hence no rational basis on which to collect evidence.
E - discovery of principles
It is impossible for any observer or participant in an investigation to determine the totality of facts if any relevant matter is kept secret. Even if there is full compliance with all of the preceding principles, if the process by which the theories and supporting facts are weighed against each other is kept secret then the finding has no scientific validity. When argument and evidence are weighed up, the procedure used in the weighing must be made known. In plain terms - whether in scientific discussions or in courts of law - if a thing is declared to be fact, but reasons are not given for that finding of fact, then the finding is not scientific. In the absence of reasons for a finding of fact, any rational observer is entitled to assume that there are no reasons and that the finding was arbitrary.
5th scientific principle of natural justice -
If any participant to the fact finding process was kept from knowing by what procedure the arguments and evidence were tested then the facts were not found in a scientific manner.
Breach of any preceding principle leaves a trier of fact without the totality of relevant arguments and evidence needed for the determination of facts. It follows that breach of any preceding principle implies a breach of the 5th principle.
F - publication of findings
Publication of findings implies making known the arguments, the evidence and the facts found. It may happen, however, that common sense dictates that some details need not be published. For example: in a trial of a person accused of making an explosive device, it surely makes no sense to publish the exact details about how the device was designed and built. However, even if there is a good social or political reason for keeping some information secret, the fact that some information is kept secret entitles any rational person to deny that justice has been done. The only rational counter to such an argument would be the unblemished reputation of the trier of fact together with the unblemished reputations of all those persons who, having seen all of the evidence and heard all of the arguments, publicly declare that the finding of fact was validly determined.
It is not sufficient that the findings of a scientific or legal matter be published. It is necessary that discussion of the validity of the published findings be permitted ad infinitum. Even after the facts have been determined, whether in a scientific or a legal venue, it can never be argued scientifically that the matter is closed. In the domains of science and of law, it is always possible - even if it appears highly improbable - that new evidence may be found which undermines our trust in a finding of fact. Alternatively, a new argument about the existing evidence may give rise to a new and simpler theory. Occam's Razor and Popper's empirical falsification are as applicable to law and jurisprudence as they are to science and philosophy - but they can only be applied to openly published theories.
6th scientific principle of natural justice -
If a finding of fact was not made available for public scrutiny then the finding of fact was not done in a scientific manner.
Breach of any preceding principle leaves the public without the means to adequately scrutinise any findings. It follows that breach of any preceding principle implies a breach of the 6th principle.
The discovery of new evidence or the formulation of a new theory depends entirely on the freedoms implied by the scientific principles of natural justice already discussed. In other words, the 6 scientific principles discussed above need to be applied with recursion.
The six principles of procedure - which I suggest are the sufficient and necessary conditions for the finding of scientific fact - are not principles which ought to be followed: they are factors which are found to be absent whenever a complaint of procedural unfairness is upheld.
Whether in a scientific or a legal setting: the six principles or factors discussed above are sufficient and necessary to the scientifically valid discovery of fact.
The legal principle of closure implies the impossibility that new evidence or new argument might arise. To deny that a legal finding of fact is falsifiable is to deny that it is scientific.
In either a scientific or a legal setting: the absence - or inadequate presence - of any one or more of these factors is sufficient to create a psychological unease in most human observers. The feeling is of observing something surreal and is akin to the uncanny valley experience.
Further / related reading:
Is This A Fishing Expedition ?
Kafka Eat Your Heart Out
Peer on IG Persuit of Dead Polar Bear