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Comments on: “Summary Justice” http://sharpener.johnband.org/2006/05/summary-justice/ Trying to make a point Fri, 25 Jan 2008 12:21:35 +0000 hourly 1 By: Dunc http://sharpener.johnband.org/2006/05/summary-justice/#comment-13860 Thu, 25 May 2006 14:56:24 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13860

[…] generally speaking my beef is that the “defend human rights” side of the debate rarely acknowledges that sooner or later some poor bugger will get blown up by somebody who the security services were trailing, waiting for sufficient evidence. And the “lock ‘em up” side rarely acknowledges how often innocent people get hauled in and have their lives ruined, and, following your argument, the consequences of compromising the principles of a fair trial.

And what the “lock em up” side never acknowledges is that sooner or later some poor bugger will get blown up by somebody who would’ve been locked up if they hadn’t already locked up an innocent person for an earlier crime. The trade off isn’t imprison the innocent OR let the guilty go free, it’s imprison the innocent AND let the guilty go free, OR let the guilty go free.

The only logically consitent argument for allowing weak convictions is that you believe it’s more important to lock somebody up than it is to lock the right person up. If you’re going to go down that route, you might as well just lock people up at random.

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By: luis enrique http://sharpener.johnband.org/2006/05/summary-justice/#comment-13819 Wed, 24 May 2006 13:20:36 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13819 ta!

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By: Liadnan http://sharpener.johnband.org/2006/05/summary-justice/#comment-13818 Wed, 24 May 2006 13:17:22 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13818 I don’t actually accept that the two are contradictory, because rights conflict by nature. I have a right to free speech, you have a right not to be offensively libelled. X has a right not to be arbitrarily imprisoned, you have a right not to get blown up by X upon it turning out that X really was a terrorist. Calling it a cost-benefit analysis isn’t really helpful language on reflection, in my view: it’s a balancing of the one against the other to determine where the line gets drawn. Which is why I suggest that the right to a fair hearing is the one you can’t balance, because it’s where the balancing gets done.
That’s all quite express in ECHR and HRA jurisprudence, in the notion of “proportionality”. Limits on rights are required to be proportional to the reason for which the limits are imposed. Dworkin argues that the increase in the risk to the life of UK citizens is “marginal” it would follow to my mind that the limits sought to be imposed on the accused are not proportional.

At the higher level I do think there is a cost benefit advantage to society as a whole to a rights based jurisprudence in that it strengthens the rule of law and each individual’s sense that they are a full and recognised part of society, leading to a more stable civilisation.

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By: luis enrique http://sharpener.johnband.org/2006/05/summary-justice/#comment-13816 Wed, 24 May 2006 12:58:58 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13816 I asked something about this (sort of) on the CiF thread and received a very good answer (from somebody called Gomer) about the incompatibility (or at least problems) of rights-based and cost/benefit systems.

Is it possible to reconcile the two ways of thinking? What would happen if you did a cost/benefit analysis of the idea of using a rights-based system that may overrule cost/benefit considerations? I mean is it coherent to argue that the benefits of using a system based around rights, which may sometimes overrule cost/benefit judgements, outweigh the costs? That could probably do with being more elegantly expressed.

I want to reconcile the two, because it seems to me that on some level rights-based systems must have benefits that outweigh the costs, otherwise I’m against them.

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By: Liadnan http://sharpener.johnband.org/2006/05/summary-justice/#comment-13813 Wed, 24 May 2006 10:54:25 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13813 I’m not always convinced by Dworkin’s arguments actually. And this seems rather odd to me: unless I misunderstand him he first says “don’t do a cost benefit analysis, balancing exercise, it isn’t appropriate” but finally justifies his position by saying
“But the increased risk that each of us runs is marginal when we insist on enforcing human rights rather than abandoning them just because they have proved inconvenient”.

If the point is that the increased risk is marginal, how is he not doing a cost-benefit analysis?

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By: luis enrique http://sharpener.johnband.org/2006/05/summary-justice/#comment-13811 Wed, 24 May 2006 09:54:34 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13811 Hoopla! talking of which …

http://www.guardian.co.uk/commentisfree/story/0,,1781655,00.html

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By: luis enrique http://sharpener.johnband.org/2006/05/summary-justice/#comment-13459 Tue, 23 May 2006 09:31:40 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13459 Liadnan,

I agree that it’s not a new worry, but you could argue that if there’s more at stake, then the different risk profile (ie. terrorism) could justify a different position. Not sure that I would argue that – I just mean to point out that we need not arrive at the same answer in all cases, for the sake of consistency of principle.

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By: Liadnan http://sharpener.johnband.org/2006/05/summary-justice/#comment-13457 Tue, 23 May 2006 09:07:26 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13457 Luis: that’s not a new worry. The police often have strong suspicions amounting to near certainty about habitual criminals, including suspected murderers, and some of them are then found guilty of a later crime. Should that be sufficient to take some action against them? I don’t think so.

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By: luis enrique http://sharpener.johnband.org/2006/05/summary-justice/#comment-13416 Mon, 22 May 2006 18:10:23 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13416 Yup.

I suppose whichever way you cut it you face the inevitablity of either:

1. locking away (or deporting and so forth) lots of innocent people

2. failing to lock away somebody who then goes on to do something horrible.

I think you’re right that the line has to be drawn at a point that still (to my mind) leaves a worrying risk of 2. That is albeit worrying to my mind in my (perhaps disproportionate) state of worry about terrorism.

I don’t mean to direct the following at you, but generally speaking my beef is that the “defend human rights” side of the debate rarely acknowledges that sooner or later some poor bugger will get blown up by somebody who the security services were trailing, waiting for sufficient evidence. And the “lock ’em up” side rarely acknowledges how often innocent people get hauled in and have their lives ruined, and, following your argument, the consequences of compromising the principles of a fair trial. These are, of course, sweeping generalisations backed up by no evidence.

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By: Liadnan http://sharpener.johnband.org/2006/05/summary-justice/#comment-13410 Mon, 22 May 2006 14:39:35 +0000 http://www.thesharpener.net/2006/05/19/summary-justice/#comment-13410 I do easily accept that most rights and liberties have to be balanced against one another, what I don’t think I can accept is the notion of a trade-off between security and fair trial. Fair trial and procedure is arguably different from most of the other notions we think of as specific rights or liberties, in that it secures those other rights and is the process by which we come to a conclusion on where you strike the balance between them. So I think I do finally come to the conclusion they have to put up or shut up. Maybe look for something else they can charge them with on evidence they do have. As they notably did with Abu Hamza of course.

I would be happy to see (legal) wiretapping evidence used in court, yes. I don’t any longer see a good reason for not letting it go to the jury: though there may be arguments to be made about how reliable it is, they can be made in court, rather than used as grounds for exclusion.

Sorry for the delay in responding by the way, I’ve been out of the country and away from the internet and have a mountain of work.

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