*2 To quote the immortal words of Monty Python’s Michael Palin, ‘You’re a Catholic the moment Dad came.’
*3 Walking around would be pretty difficult, too: we’d be tripping over fossils every step of the way.
*4 There are some exceptions, especially in plants, where a new species, defined by the criterion of inability to interbreed, comes into being in a single generation.
*5 That was the number in 2000. It varies from year to year.
*6 If the Electoral College were ever to be abolished it would have to be done by constitutional amendment, and that is difficult. It requires a two-thirds majority in both houses of Congress and must be ratified by three-quarters of the state legislatures. The worst of both worlds would be a piecemeal reform by one state or another, following the example of Maine and Nebraska and allocating Electoral College votes pro rata. An idealistic, but probably unworkable alternative would be to revert to a true Electoral College as it was originally conceived. This would be like the College of Cardinals that chooses a new Pope, except that the members of the Electoral College would be elected, not appointed: a body of respected citizens, elected by the voters, who would meet to evaluate all the (potentially many) candidates for President – take up references, read their publications, interview them, vet them for security and health, and finally vote and announce their choice to the world with a puff of smoke: habemus praesidem. That’s something like the way the US Electoral College actually started. The rot set in when delegates to the College became mere ciphers, pledged to support particular presidential candidates. Unfortunately, my version probably couldn’t work, if only because it would be vulnerable to corruption, and pledging in advance would probably creep back in.
‘Beyond reasonable doubt’?*1
IN A COURT of law – say, at a murder trial – a jury is asked to decide, beyond reasonable doubt, whether a person is guilty or not guilty. In several jurisdictions, including thirty-four states of the US, a guilty verdict may result in an execution. Numerous cases are on record where later evidence not available at the time of trial, especially DNA evidence, has retrospectively reversed an old verdict and in some cases led to a posthumous pardon.
Courtroom dramas accurately portray the suspense that hangs in the air when the jury returns to deliver its verdict. All, including the lawyers on both sides and the judge, hold their breath while they wait to hear the foreman of the jury pronounce the words ‘guilty’ or ‘not guilty’. However, if the phrase ‘beyond reasonable doubt’ means what it says, there should be no doubt of the outcome in the mind of anybody who has sat through the same trial as the jury. That includes the judge who, as soon as the jury has delivered its verdict, is prepared to give the order for execution – or to release the prisoner without a stain on his character.
And yet, before the jury returned, there was enough ‘reasonable doubt’ in that same judge’s mind to keep him on tenterhooks waiting for the verdict.
You cannot have it both ways. Either the verdict is beyond reasonable doubt, in which case there should be no suspense while the jury is out; or there is real, nail-biting suspense, in which case you cannot claim that the facts have been proved ‘beyond reasonable doubt’.
American weather forecasters deliver probabilities, not certainties: ‘Eighty per cent probability of rain.’ Juries are not allowed to do that, but it’s what I felt like doing when I served on one. ‘What is your verdict, guilty or not guilty?’ ‘Seventy-five per cent probability of guilt, m’lud.’ That would be anathema to our judges and lawyers. There must be no shades of grey: the system insists on certainty, yes or no, guilty or not guilty. Judges may refuse even to accept a divided jury and will send members back into the jury room with instructions not to emerge again until they have somehow managed to achieve unanimity. How is that ‘beyond reasonable doubt’?
In science, for an experiment to be taken seriously, it must be repeatable. Not all experiments are repeated – we have not world enough and time*2 – but controversial results must be repeatable, or we don’t have to believe them. That is why the world of physics waited for repeat experiments before taking up the claim that neutrinos can travel faster than light – and indeed the claim was eventually rejected.
Shouldn’t the decision to execute somebody, or imprison them for life, be taken seriously enough to warrant a repeat of the experiment? I’m not talking about a retrial. Nor an appeal, although that is desirable, and happens when there is some disputed point of law or new evidence. But suppose every trial had two juries, sitting in the same courtroom yet forbidden to talk to each other. Who will bet that they would always reach the same verdict? Does anybody think a second jury is likely to have acquitted O. J. Simpson?
My guess is that, if the two-jury experiment were run over a large number of trials, the frequency with which two groups would agree on a verdict would run at slightly higher than 50 per cent. But anything short of 100 per cent makes one wonder at the ‘beyond reasonable doubt’ held to be sufficient to send somebody to the electric chair. And would anybody bet on 100 per cent concordance between two juries?
Isn’t it enough, you may say, that there are twelve people on the jury? Doesn’t that provide the equivalent of twelve replications of the experiment? No, it doesn’t, because the twelve jurors are not independent of one another; they are locked in a room together.
Anybody who has ever been on a jury (I’ve been on three) knows that authoritative and articulate speakers sway the rest. Twelve Angry Men is fiction and doubtless exaggerated, but the principle remains. A second jury without the Henry Fonda character would have found the boy guilty. Should a death sentence depend on the lucky break of whether a particularly perceptive or persuasive individual happens to be picked for jury duty?
I am not suggesting that we should introduce a two-jury system in practice. I suspect that two independent juries of six people would produce a fairer result than a single jury of twelve, but what would you do on those many (as I suspect) cases where the two juries disagreed? Would the two-jury system amount to a bias in favour of the defence? I can’t suggest any well-worked-out alternative to the present jury system, but I still think it is terrible.
I strongly suspect that two judges, forbidden to talk to each other, would have a higher concordance rate than two juries and might even approach 100 per cent. Yet that, too, is open to the objection that the judges are likely to be drawn from the same class of society as each other and to be of similar age, and might consequently share the same prejudices.
What I am proposing, as a bare minimum, is that we should acknowledge that ‘beyond reasonable doubt’ is a hollow and empty phrase. If you defend the single-jury system as delivering a verdict ‘beyond reasonable doubt’, you are committed to the strong view, whether you like it or not, that two juries would always produce the same verdict. And when you put it like that, will anybody stand up and bet on 100 per cent concordance?
If you place such a bet, you are as good as saying that you wouldn’t bother to stay in court to hear the verdict, because the verdict should be obvious to anybody who had sat through the trial, including the judge and the lawyers on both sides. No suspense. No tenterhooks.
There may be no practical alternative, but let’s not pretend. Our courtroom procedures make a mockery of ‘beyond reasonable doubt’.
* * *
*1 I have no training in law, as will no doubt be apparent to those who have. But I’ve served on three juries where I was instructed that proof of guilt must be established ‘beyond reasonable doubt’. The meaning of ‘reasonable doubt’ is something upon which a scientist might have something to say. This was what I said in the New Statesman of 23 January 2012.
*2 Andrew Marvell’s context was different but his lament works here too.
But can they suffer?*
THE GREAT MORAL philosopher Jeremy Bentham, founder of utilitarianism, famously said: ‘The question is not, “Can they reason?” nor, “Can they talk?” but rather, “Can they s
uffer?” ’ Most people get the point, but they treat human pain as especially worrying because they vaguely think it sort of obvious that a species’ ability to suffer must be positively correlated with its intellectual capacity. Plants cannot think, and you’d have to be pretty eccentric to believe they can suffer. Plausibly the same might be true of earthworms. But what about cows?
And what about dogs? I find it almost impossible to believe that René Descartes, not known as a monster, carried his philosophical belief that only humans have minds to such a confident extreme that he would blithely spreadeagle a live mammal on a board and dissect it. You’d think that, in spite of his philosophical reasoning, he might have given the animal the benefit of the doubt. But he stood in a long tradition of vivisectionists including Galen and Vesalius, and he was followed by William Harvey and many others.
How could they bear to do it: tie a struggling, screaming mammal down with ropes and dissect its living heart, for example? Presumably they believed what came to be articulated by Descartes: that non-human animals have no soul and feel no pain.
Most of us nowadays believe that dogs and other non-human mammals can feel pain, and no reputable scientist today would follow Descartes’ and Harvey’s horrific example and dissect a living mammal without anaesthetic. British law, among others, would severely punish them if they did (although invertebrates are not so well protected, not even large-brained octopuses). Nevertheless, most of us seem to assume, without question, that the capacity to feel pain is positively correlated with mental capability – with the ability to reason, think, reflect and so on. My purpose here is to question that assumption. I see no reason at all why there should be a positive correlation. Pain feels primal, like the ability to see colour or hear sounds. It feels like the sort of sensation you don’t need intellect to experience. Feelings carry no weight in science but, at the very least, shouldn’t we give the animals the benefit of the doubt?
Without going into the interesting literature on animal suffering (see, for instance, Marian Stamp Dawkins’ excellent book of that title, and her subsequent Why Animals Matter), I can see a Darwinian reason why there might even be a negative correlation between intellect and susceptibility to pain. I approach this by asking what, in the Darwinian sense, pain is for. It is a warning not to repeat actions that tend to cause bodily harm. Don’t stub your toe again, don’t tease a snake or sit on a hornet, don’t pick up embers however prettily they glow, be careful not to bite your tongue. Plants have no nervous system capable of learning not to repeat damaging actions, which is why we cut live lettuces without compunction.
It is an interesting question, incidentally, why pain has to be so damned painful. Why not equip the brain with the equivalent of a little red flag, painlessly raised to warn, ‘Don’t do that again’? In The Greatest Show on Earth, I suggested that the brain might be torn between conflicting urges and tempted to ‘rebel’, perhaps hedonistically, against pursuing the best interests of the individual’s genetic fitness, in which case it might need to be whipped agonizingly into line. I’ll let that pass and return to my primary question for today: would you expect a positive or a negative correlation between mental ability and ability to feel pain? Most people unthinkingly assume a positive correlation, but why?
Isn’t it plausible that a clever species such as our own might need less pain, precisely because we are capable of learning faster, or intelligently working out what is good for us and what damaging events we should avoid? Isn’t it plausible that an unintelligent species might need a massive wallop of pain, to drive home a lesson that we can learn with less powerful inducement?
At very least, I conclude that we have no general reason to think that non-human animals feel pain less acutely than we do, and we should in any case give them the benefit of the doubt. Practices such as branding cattle, castration without anaesthetic, and bullfighting should be treated as morally equivalent to doing the same thing to human beings.
* * *
* First published on boingboing.net in 2011.
I love fireworks, but…
ON 12 OCTOBER 1984, a Provisional IRA member planted a bomb in the Grand Hotel, Brighton, in an attempt to assassinate the Prime Minister. That objective failed, although five people were killed and many injured. Would we want a national festival every 12 October when we all let off fireworks to commemorate this event? And if, in addition, we burned the perpetrator, Patrick Magee, in effigy all over the country, wouldn’t our revulsion be increased?
Bonfire Night, with its ‘remember, remember’ fireworks, commemorates a mass assassination attempt in 1605.*1 A terrorist bomb plot, even a failed one, sounds a pretty nasty thing to celebrate, which was of course why I brought up the comparison with the Brighton hotel plot. But Guy Fawkes is separated from us by more than four hundred years: long enough for the commemoration to suggest not bad taste but the quaintness of distant history. So I’m not trying to be a killjoy, a November Scrooge.
And I do love fireworks. Always have. For me the appeal is to the eye more than the ear – the spectacular colours that psychedelically paint the sky, flares lighting the smiling faces of children waving sparklers, the whirring of Catherine Wheels (again, historical distance helps us forget that that name has a pretty nasty provenance too). I don’t so much get the appeal of loud bangs, but presumably some people love them or the manufacturers wouldn’t put them in. So I don’t want to deny that fireworks, even the bangs, are fun, and I have much enjoyed Bonfire Night over the years, from childhood on.
But although I love fireworks I also love animals. Including human animals, but just now I’m talking about non-human animals. Like our little dogs, Tycho and Cuba, who are only two among millions all over the country that are terrorized every year by the prodigiously anti-social decibels of modern fireworks. It would be tolerable if it happened only on 5 November. But over the years ‘November the Fifth’ has expanded relentlessly in both directions.*2 It seems that many people, having bought their fireworks, are too impatient to wait until the night itself. Or they enjoyed the night itself so much that they can’t resist reprising it week after week thereafter. And in Oxford the firework season is not a limited season at all but extends to most weekends throughout the university terms.
If it were only Tycho and Cuba whose lives are made a misery, I’d shut up about it. But when I tweeted my misgivings about the noise, the response from other owners of dogs, cats and horses was overwhelming. This subjective impression is confirmed by scientific studies. The veterinary literature lists more than twenty physiologically measurable symptoms of distress in dogs resulting from fireworks. In extreme cases the fear caused by fireworks has even led to normally gentle dogs biting their owners. It’s estimated that some 50 per cent of dogs and 60 per cent of cats suffer from firework-phobia.
Then think about all the wild animals all over the country. And cattle, pigs and other farm livestock. There is no reason to believe wild animals, whom we don’t see, are any less terrified than domestic pets whom we do. Rather the reverse, when you consider that loved pets like Tycho and Cuba have human comforters to soothe and console them. Wild animals suddenly, without warning, have their natural environment and peaceful nights polluted by the acoustic equivalent of a First World War battle. Talking of which, among the sympathetic responders to my firework tweets were war veterans suffering from the modern equivalent of First World War shell-shock.
What should be done? I wouldn’t call for a total ban on fireworks (as enforced in some jurisdictions, including Northern Ireland during the Troubles*3). Two compromises are commonly suggested. First, fireworks might be restricted to certain special days in a year, such as Guy Fawkes’ Night and New Year’s Eve. Other special occasions – big parties, balls and the like – could be accommodated by individual applications, along the same lines as permissions to play loud music on special occasions. The other suggested compromise is to allow firework displays to be put on by public bodies but not any old private citizens in their own
back gardens. I would suggest a third compromise, which might reduce the need for the other two: allow visually appealing fireworks but put a severe restriction on noise. Quiet fireworks do exist.
Although the replies to my tweets were overwhelmingly in agreement, there were two dissenting strands, which need to be taken seriously. First, wouldn’t a legal restriction on fireworks infringe personal liberties? And second, shouldn’t the pleasure of humans have priority over the feelings of ‘mere animals’?
The personal liberties point is superficially persuasive. Several tweeters said that what people do in their own gardens – on their own private property – is their own business and nobody else’s, especially not the business of the ‘nanny state’. But the sound and shock waves from a loud explosion radiate outwards far beyond the boundaries of anybody’s garden. Neighbours who don’t like the flashes and colours of fireworks can block them by drawing the curtains. No such blocks are effective against loud bangs. Noise pollution is antisocial in a peculiarly inescapable way, which is why the Noise Abatement Society is so necessary.
What about the ‘mere animals’ plea? Isn’t human pleasure more important than terrified dogs, cats, horses, cows, rabbits, mice, weasels, badgers and birds? The presumption that humans matter more than other animals lies deep within us. It’s a difficult philosophical problem, and this is not the place to go into it in depth. Just a couple of thoughts.
First, although the reasoning power and intelligence of non-human animals is far inferior to ours, the ability to suffer – feel pain or fear – doesn’t depend on reasoning or intelligence.*4 An Einstein is no more capable of feeling pain or fear than a Sarah Palin. And there’s no obvious reason to suppose that a dog or a badger is less capable of suffering pain or fear than any human.
Science in the Soul Page 31
