Forensic epistemology
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Philosophy
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The law is uncommonly concerned with what a fellow knows, ought to know, might not know or does not know. These we regard as questions of practical epistemology. They come in two flavours: those that determine ones liability should things go wrong, and those that determine how much one knew could go wrong, and how upset one’s clients are likely to be if it does go wrong. The second logically precedes the first. This proceeds from the JC’s maxim: your goal is not to win litigation with your customers, but avoid it.
How much you know could go wrong
There are five types of known.
The Rumsfeld three:
- Known knowns: Things you do know you know;
- Known unknowns: Things you do know you don’t know;
- Unknown unknowns: Things you don’t know you don’t know;
And the Jolly Contrarian three:
- Unknown knowns: Things you don’t know you do know.
- Not officially known: Things you know but the general public can’t prove.
- Knowable unknowns: Things you don’t know, but think you do know, for the time being, because computers.
How liable you will be when things do go wrong
The ladder of liability
In some strands of legal endeavour (notably in the criminal law and the tortious world of civil wrong-doing, one’s mental state is important in assessing one’s responsiblity; in others (principally the cool and dispassionate law of contract) it is — for the most part — not.
Where the inadvertent is blameless, neither knowing the risk she runs, nor being reasonably expected to be able to anticipate it; and the negligent has some civil, civic responsibility for what befalls his neighbour on the premise that, since that odious hypothetical fellow plucked from the pews of the sacred Clapham omnibus would have seen it, so should he, even though in point of fact he did not; the grossly negligent is a poor, confused, careless American; the reckless sees the risk, all right, and decides to plough on and take it, notwithstanding, that she might have no particular wish or expectation that a calumny should befall anyone, least of all the plaintiff.
The intender, in contrast to all those above, does what he does as a matter of cold-blooded, contemptuous calculation.[1]
Now the standards as between crimes and torts diverge. We know at one end are the innocent, faultless lambs, at the other wanton brigands; but how the varying stages between fit together is by no means clear. We have had a half-hearted go, but be warned, it was a Friday afternoon, and we got approached knock-off time we swiftly lost interest. This is probably a good example of negligence.
Right, where’s that beer?
| Criminal | Tort | Contract | Description |
|---|---|---|---|
| Inadvertence | Inadvertence | Inadvertence | Neither intended, wanted, foresaw, nor can reasonably have been expected to foresee the calamity that in fact came about. Had no bearing on any duties, implied or explicit, arising between us. |
| Negligence | Negligence | — | A reasonable person in that position would have foreseen the incipient calamity which would come about by following this course of action, but our hero, in actual fact, did not. Ergo, an unreasonable person. |
| — | — | Default | You have agreed to do something, received consideration for it and, whether by accident or design, you didn’t do it. This is the contractual equivalent of negligence: you had a duty, and you fell short of it. |
| — | — | Wilful default | You have agreed to do something, received consideration for it and, on purpose, you didn’t do it. (This is the same as default, by the way. No-one cares why you didn’t do it). |
| — | — | Gross negligence | Even a faintly moronic person in that position would have foreseen the incipient calamity which would come about by following this course of action but our hero in actual fact did not. Ergo, a stridently moronic person. Unclear how there is room for this in a contract given normal default and the already redundant wilful default. |
| Recklessness | — | — | Our hero did foresee the incipient calamity and, while not wanting it, boxed on regardless. |
| Intention | — | — | Not only foresaw the calamity but acted fully intending it to come about. |
See also
- ↑ This use of the word “calculation” might upset some tort lawyers, for in legal terms to be “calculated” means expected to happen as a matter of probability, rather than mendacious design. Odd, really.