Confounding The Obvious

This story is probably emblematic both of the favoritism shown to police-turned-criminal-defendants, and of something deeper.

Three police detectives “had sex” with an 18 year old woman they had in custody.  In handcuffs, no less.  By any sane definition, this is – and always has been – rape.  It is also difficult to imagine a more flagrant and shocking abuse of power by police officers.

The sentence is probation, not prison.  That may be an appropriate sentence for any number of reasons, but the reasons given are why we comment on the whole affair this morning.

Two of these reasons stand out.  One is that the incident took place before the state closed a “loophole” by passing a law explicitly saying that police officer sex with a person in custody was rape by definition, as if this needed to be said, as if any sane person could regard this as a loophole needing to be explicitly closed by language in a statute.  The other is that the judge stressed that the victim was a liar and not credible, to which a more normal response would be:  even if that’s true, so what?  The detectives are going to argue “consent”?  Under those circumstances?

Alas, things are not normal in our legal profession and our judiciary.  And this is another example of the surprising role – surprising to us, at least – of the profound intellectual errors the pseudo subject of “political science” – the most common undergraduate course of study for lawyers and judges – has wrought.  We’ve written about this before.  We may come back to it again, so often does it make itself felt in this or that high profile context.

Briefly:  political science encourages a “positivist” view of things.  In the positivist view, only “empirically verifiable” or “analytically true” statements have cognitive meaning.  And strictly speaking, in reality only the former do, because the latter are mere tautologies, true merely by definition, devoid of cognitive content, always subject to being refuted by empirical “proof”.

So it is possible, in the positivist trained mind, that in a situation where there has been a rape by definition – which would of course be merely an analytically true statement – the axiomatic nature of that assertion could be overcome by an empirical finding of consent due to the victim credibility issue.  Until, of course, what is not coincidentally called the “positive law” codifies the axiom, precluding that conclusion no matter what the empirical evidence might be.  But such a positive law did not exist at the time of the incident in question.  Thus an obvious incidence of rape can be deemed otherwise by a positivist.

Which is to say that positivists are not sane.

They nevertheless dominate the legal profession and the judiciary.  Positivism is at the foundation of their very intellectual formation (though they are not educated enough to be aware of this, or its significance), and there is no atrocity that they are not capable of in their administration of the “law”, as they understand it.  Rape and murder are not off the table, because they do not exist as concepts – or in reality – in any meaningful way unless and until they are positively proscribed by appropriate authority or empirically established by a “fact-finder”, usually a jury.





Filed under epistemology

3 responses to “Confounding The Obvious

  1. The Inimitable NEET

    I’m not familiar with what is taught in political science these days, but aren’t there simpler, more plausible answers that could be entertained instead?

    Yes, it’s entirely possible the field is plagued with a logical positivist mentality that eschews any commitment to individual morals or common sense. Maybe this turn in jurisprudence has created a morally bankrupt culture among judges and lawyers. But to a naive person it brings up more questions than answers:

    Why is logical positivism specifically popular in PolSci and not in related disciplines? The movement has largely been discredited within philosophical circles, so how did it jump ship and prosper somewhere where its main tenets don’t appear to be revelatory or useful?

    Why does this attitude persist past university and law school?

    Why would Nietzscheanism/postmodernism hold such powerful sway over PolSci when when both rarely tackle jurisprudence qua jurisprudence?

    Where are the countervailing forces that would mitigate or at least soften its impact?

    What are the incentives for judges/lawyers to disregard all moral intuition?

    Why settle on epistemic corruption as an explanation rather than filtering mechanisms or other reasons?

    To my untrained eye your explanation for the case is indistinguishable from a particularly morbid strain of legalism. A system too focused on dotting Ts and crossing Ts, with the subsequent addition of recruiting apathetic judges/lawyers in who don’t care about overseeing proper justice, would pass the buck to whatever convenient scapegoats existed. Wouldn’t such institutional laziness be an adequate explanation as well?


    • Really great comment, I appreciate it. But this is a really, really long discussion. Books could be written. Probably should be.

      First, sure, I wouldn’t rule out institutional mental sloth playing a big part as well. By no means am I of the opinion that positivism is the only problem at work here.

      It’s been a while since I was deeply into these issues myself. I recall, as you do, the idea that logical positivism had been sort of “discredited”, but then one of its prominent proponents who is said to have repudiated positivism – Ludwig Wittgenstein – never strayed too far from it. The primary thrust of the positivists – that metaphysics was dead, that moral principles were devoid of content, meaningless and intellectually indefensible – has never really been abandoned in the post-modern intellectual scene. Maybe transcended in some ways. That’s a subtle point I can’t really delve into here. I’d need to re-familiarize myself with the subject.

      But the point about Political “Science” should be simpler. You know, “science” brought to bear on politics, which historically would be seen as having a large moral dimension what with justice being one of the principal political concerns and all. A self-described “science”, a subject that didn’t even exist prior to the 19th century, is pretty plainly trying to capture the intellectual spirit of that age, which was to embrace all things “science” and to reject all “metaphysical” ideas like “justice”.

      It’s a bad idea, but confined to the academy it’s relatively harmless and has its uses. Set loose upon the real world, however, and adopted by what everyone regards as a “justice” system it’s pretty much a nightmare.

      The incentives for judges and lawyers to disregard moral intuition? Personal advancement, mostly. Look at it this way. The implicit idea of a justice system is to neutralize or negate disparities in power among the parties to a dispute and to resolve the dispute on a different basis, namely fairness for want of a better word. Because of course if the dispute is resolved on the basis of who has more power the more powerful party will always prevail, by definition.

      But siding with the weaker against the more powerful isn’t a good career move. Powerful positions are conferred by the people with power to confer them, also more or less by definition.

      So the referee in the justice game, the judge, has a strong incentive to the extent he’s career motivated – which he pretty much is, also more or less by definition – to appease powerful interests, with no discernible motivation in the opposite direction. Same with lawyers who depend on clients who can pay them for their career “success”.

      More on this later. Gotta run for now.


  2. In practice you can see how this works out system wide. The system will favor the powerful over the powerless more and more as time goes on because there’s no percentage for any of the players to do anything else. The system finally becomes an inversion of its intended purpose, reflexively convicting whoever is hauled in by the government and throwing the powerless out of court if they come in as plaintiffs with their piddling complaints. We have already reached this nadir in the US, with the SCOTUS decisions in Iqbal and Twombley in 2009, among other things.

    This is not to say that atrocities will occur every time, and every day. There is some residual decency in most of our police, our prosecutors, and our judges. But the point is that there is no reason atrocities will not occur in principle. So they’re inevitable whenever the residual decency fails, and the system is incapable of correcting them because it is incapable of recognizing them unless and until ……

    Well, I’m going to leave that unsaid for now. Perhaps you and others can guess.


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