Largely on the basis of that film appearance, I was invited by the defense attorneys to appear as an "expert witness" at the hearing. Prior to the scheduled date of that appearance, I was identified, to the media and to the Court, as an "expert" in matters of "economics and ethics." It proved to be a costly error on both counts. In the first place, I am not an "expert" on matters of economics. In the second place, most of the "ethical" issues (regarding, e.g., "value-free cost-benefit analysis," discounting the future, justice and equity vs. utility, etc.) were clearly irrelevant to "the defense of necessity" being proposed to the Court in that hearing. (Disagreement with standard governmental policy-making procedures was not, for example, offered as justification for trespassing on private property, nor was a "moral/philosophical" dispute with the utilitarian biases of the government policy-makers -- however interesting these issues might be to scholars and even ordinary citizens).
The question of the relevance of testimony on "economics and ethics" did not escape the notice of Prosecutor Robert Foster or Judge Chotiner. Accordingly, on the day before my scheduled appearance, the opposing attorneys met the Judge in his chambers. At that meeting, the judge clearly expressed his doubts regarding the relevance of testimony concerning "economics and ethics" from a philosophy professor.
Soon thereafter I arrived in San Luis Obispo and was confronted with the emergency. We quickly decided to abandon any attempt to deal with issues of economics or ethics. What, then, might a philosopher say in behalf of the defendants? Upon reviewing the particulars of the "defense of justification by necessity," we identified what appeared to be an obvious item of interest and expertise to the philosopher: "rational belief." Surely, we agreed, that, if anything, is the philosopher's proper and appropriate province of professional expertise. Accordingly, I would testify that the defendants' beliefs that their lives, health and property were in danger, was a reasonable belief, and that their disinclination to accept government and industry assurances to the contrary was likewise reasonably based.
The Day in Court
After reading the prospective witness's Curriculum Vita, judge Chotiner raised, for the record, his qualms: "My concern was that under . . . case authority and [the authority] of legal scholars, at least of which I am aware, the ethical and economic aspects of the Diablo Canyon nuclear power plant do not seem to come within the concept of the defense of necessity . . ."4
Ms. Conk wisely, and promptly, jettisoned the "ethical and economic aspects" and turned to the matter of "reasonable belief."
Ms. Conk then moved into an impromptu "offer of proof' -- a specification of some of the items that the witness was prepared to present to the court in behalf of the claim that the defendants' claim of justification by reason of "necessity" was based upon a "rational and honest belief." Some of these items were listed in the previous section, and others will be presented shortly. However, since the primary objective of this paper is not to plead the defendants' case, we will give relatively little attention to that case.
This first summation of the proposed testimony of the witness filled scarcely a hundred lines of transcript. The judge then posed a few questions, thus introducing two obscure and troublesome terms into the proceedings and the transcript: "objective reasonableness" and "subjective reasonableness." These terms, which will engage much of our attention for the remainder of the paper, will, in this section, be presented largely in context and without explication.
5 . . . Someone who has expertise in this area [i.e., of valid inference (ep)]. . . is [a] qualified and necessary witness.
The Court: Isn't that something that refers to the reasonableness of a belief or reasonableness of action? Isn't that a matter that is always determined by the trier of fact [i.e., the judge or jury]?
The judge's question is based upon a crucial legal distinction between, on the one hand, expert testimony bearing upon the question at trial, and, on the other hand, an expert opinion and pronouncement upon the question itself. The former is normally admissible and the latter is not, on the sensible assumption that a witness should assist but not actually do "the jury's work;" namely, concluding guilt or innocence on the grounds allowed by the court and presented by the defense. (The prosecutor, Mr. Foster, was to make this objection, as we shall see shortly). In the immediate case, the philosopher was prepared to explain and demonstrate the rationality or irrationality of component arguments by interested parties (i.e., government, industry, scientists, etc.) familiar to, and deliberated by, the defendants. While the philosopher might properly have been forbidden from directly answering the question, "was the belief that led to the defendants' trespass 'honest and rational,' he might have been called upon to explain and assess the cogency of the reasoning process that led to this belief and ensuing action. Thus, by failing to respond directly and appropriately to this question by the judge, the defense counsel may have neglected an opportunity to rescue the failing attempt to put the philosopher on the stand.6
The judge's questions then took a strange turn that suggested some confusion in his, and Ms. Conk's understanding of logic:
Both the question and the answer are ambiguous. In a psychological sense, a "reasonable" belief might not "be based on logic." In a logical sense, the assertion "a reasonable belief is based on logic" is an analytic truth," (which follows from the commonplace definition of "logic" as "the study of "reasonable inference." Putting the matter another way, while the holder of a "reasonable belief" may be unprepared to demonstrate the logical validity thereof, it has (qua "reasonable") such validity. (To use an illustrative analogy, an unlearned speaker may be able to speak grammatically without citing the grammatical rules he is using, or otherwise "proving" the correctness of his utterance. But it is logically impossible for him to speak "ungrammatically" without violating grammatical rules). Without elucidating this ambiguity directly, Ms. Conk put the matter back on track.
The Prosecutor then had his turn:
8 What they are really saying to you, is that we want to prove the subjective beliefs were credible9 by bringing in an expert. [Emphases added].
The Prosecutor is raising a point mentioned earlier: namely, that it is the function of an expert witness to aid rather than to instruct the judge or jury as to their verdict. That objection could have been met through an agreement by the defense to direct testimony to an elucidation of rules of valid inference, to an examination of fallacies, to an assessment of the reasonableness of parts of the defendants' thought processes, but not to the question of the specific reasonableness of the general decision to violate the law. Beyond this point, Mr. Foster appears to be sneaking a base. Note the italicized portions of the above objection. Then consider: The philosopher was not brought to court to offer testimony as to the state of mind of the defendants at the time of the blockade that is, of what the defendants actually believed, at that time, to be "rational." ("Subjective beliefs). In a word, he was not to function as a psychologist, or worse, a clairvoyant. Rather, he was called upon to assess the objective reasonableness of their conclusion that (a) their lives and property were in imminent danger, and (b) that assurances to the contrary by government and industry were fallacious. The objection continued:
Once again, we find a brief remark freighted with significance. Aside from the troublesome ambiguity in the word "credibility" [cf. note 8, above], defense counsel's infelicitous remark about "reasonableness not based on logic" is here distorted into "illogical but reasonable" [cf. note 6, above]. That strange paraphrase becomes a hook upon which Mr. Foster hangs his argument. Thus, if I understand him correctly, "illogical but reasonable" is interpreted to mean "[objectively] illogical but [subjectively] "reasonable". The final two sentences of his statement above ("The logic behind it . . ."), seems to say as much. Thus does the Prosecution attempt detach the discipline of logic and the professional expertise of the philosopher from the issue. But why does "the logic behind" the defendants' belief "not matter"? No argument is offered in support of this contention. Surely their (subjective) beliefs at the time of the blockade do "matter" crucially to the case. But it does not follow from this that the objective grounds of those beliefs "does not matter." Judging from the roster of expert witnesses previously admitted to the stand in this hearing, the Court has clearly ruled that such "grounds" are germane. And so the question with which we opened this paper, remains unanswered: If, in support of the "reasonableness" of the defendants' subjective beliefs, the testimony of a physicist, a biologist, a seismologist, and many others, regarding "objective facts" are deemed admissible, then why not the testimony of a philosopher regarding the "objective soundness" of the defendants' inferences drawn from these facts? Mr. Foster has little more than a mangled caricature of a careless remark by opposing counsel to support his objection to such testimony.
Still, the Judge was not convinced by the defense's attempt to place the philosopher on the stand:
The Offer of Proof: Following a busy one and a half hour "cram course" (over soup, salad and sandwiches) in a philosopher's view of the nuclear power controversy, Ms. Conk presented her "offer of proof':
The presentation continued with an examination of operative methods and assumptions of government energy policy-making (notably "cost-benefit-risk" analysis and "discounting the future"). Also mentioned were contradictions inherent in the Price-Anderson act and the failure to successfully test the Emergency Core Cooling System, the claim of "no fatalities" which follows from a failure to include "statistical casualties, and the methodological and epistemological errors of The Rasmussen Report." (For a summary of these points, see Section II, items (c) through (i), of this paper).
Concluding Arguments and the Judge's Ruling. As expected, the Prosecution registered an objection.
Again, it is not at all clear that Ms. Conk alleges that "any choice to resist is reasonable" -- in fact, she denied this (both in the transcript, p. 72, and personally to the author). The (admittedly small) section of transcript examined here does not bear out the prosecutor's claim. In any case, he is here apparently continuing his attempt to direct attention away from the issue of the objective soundness of the inferences that led the defendants to take action against the Diablo Canyon Nuclear plant. The first part of Mr. Foster's objection restates the complaint that the philosopher was being called upon to "do the judge's and the jury's work." That concern was to dominate the remainder of this portion of the hearing.
In mentioning "the elements of the defense" at her closing moments, Ms. Conk perhaps touched upon the point which, if elaborated earlier, might have helped to save her case; namely, the point that the philosopher was being called upon to comment upon the particulars of the defendants' reasoning, and as an aid to, rather than a surrogate for, the jury. But that final grasp was too little and too late.
The vain attempt to place the philosopher on the stand took less than an hour and a half and was recorded in twenty-five pages of transcript.
Matters of Law
In this section I will present my impressions of some of the legal points at issue at the hearing. Once again, I must point out that these impressions were gained from conversations with several lawyers (some of whom were involved in the case) and from this layman's careful but untrained examination of the defense brief and trial transcript...
Expediency: The Unargued Factor: In private conversations, both defense attorneys have suggested to me that a primary, but unspoken, motive of the judge for not hearing testimony from the philosopher, was the judge's desire to economize on time and "get on" with the remainder of the hearing.10 This is not to say that the "expert testimony" would be totally irrelevant, but that it would be less relevant than most of the remaining testimony, and thus not worth the judge's time.
While this is a plausible point, it by no means renders moot the central question of this paper; namely, the acceptability, in a court of law, of the testimony of a philosopher regarding the "reasonableness" of an action of a defendant pleading "justification by necessity." For if expert testimony as to "reasonableness" is found less relevant (though not irrelevant) in this particular hearing, the grounds for such a finding remains of interest to us. Second, the hearing record does show that the judge was responsive to the arguments for allowing the philosopher's testimony. Those arguments, and the judges response thereto, also remain interesting to us. Third, while the judge may have felt that he, as a trained and practicing jurist, would not need the assistance of a philosopher for making judgments of "rationality," the question of the suitability of such testimony before a jury remains very much open. (The Defense expects to argue that point later). Finally, as noted before, the decision of the judge not to admit the philosopher to the stand (whatever the reasons -- stated or otherwise) raises interesting issues that need not, even should not, be settled by descriptive legal scholarship alone. The underlying philosophical issues remain, whatever the judge's motives for his decision, or the established legal principles and precedents cited in support thereof). Our inquiry continues undiminished.
"Subjective Reasonableness" and "Objective Reasonableness": In their attempt to place the philosopher on the stand, the defense attorneys urged that the testimony of this expert would be relevant to showing the "objective rationality" of the defendants' decision to blockade the Diablo facility. Countering this claim, the Prosecutor directed the attention of the Court to the issue of the "subjective rationality" of the defendants, which, he claimed, was an issue to be decided, not by an expert, but by the judge.11 This dispute appeared several times in the hearing. We will now attempt an explication of this distinction.
As defense counsel Richard Frishman explained to me,12 a "defense of necessity" requires proof of both "subjective" and "objective" reasonableness. In the operative clause of the defense, (". .which the actor honestly and reasonably believes. . ,"13) "subjective rationality" is indicated by the word "honestly," and "objective rationality" by the term "reasonably." As I understand it, "subjective rationality" simply means that the defendants strongly and honestly believe the necessity of their action, and that they believe this on grounds that they hold to be rational. That this belief is true, or even (logically) valid, is not germane to the issue of "subjective rationality." (I confess that I find the use of the term "rationality" in this context to be puzzling. Why not simply say "sincere belief' and be done with it?)14
"Objective rationality" adds to this notion the circumstance that the agents have publicly identifiable and demonstrable grounds of support for their beliefs. (Interestingly, "truth in fact" is not necessary for a defense, merely "apparent truth" on compelling and reasonable grounds).
Mr. Frishman put it this way:
15 ... The objective test goes with the facts -- hopefully. You see, that gets to the "reasonableness" part of it. The courts say that it is not enough for one person to say that he has a fear of nuclear power plants. We have to test it against a broader community standard, an objective standard, of objective facts.'16
But will facts suffice? Not to justify an act of will. For even if the relevant set of "facts" seem compelling, a decision (say) to blockade a nuclear plant must in principle follow, not directly from "facts," but from an inference from facts. (The "ought" of "I ought to blockade" can not validly follow from the "is" premises -- i.e., the facts). The philosopher's job, then, was to pass judgment not on the scientific and engineering facts but on the inferences from those facts and, additionally, on the logical insufficiency of the industry and government assurances of safety. Mr. Frishman concurred with this assessment, and added that "[this] is obviously why we had you up there." In short, objective facts and objective rules of inference from the facts both constitute grounds for a claim of "objective rationality."
This explication, however, may be too rich to allow consistency. For consider Mr. Frishman's remark that a belief must be tested "against a broader community standard." But does this reduce the "objective standard" to a sociological datum a "nose count" of public opinion? Some traditions of English law seem to suggest this.17 On the other hand, as just noted, "objectivity" might be construed to include "rules of inference" which are independent and demonstrable apart from social fashions. (If you don't believe this, then just try living for awhile in the state of Utah -- or even Isla Vista, at times). The manifest divergence, in particular cases, of these grounds of "objectivity" raises some profound questions in the philosophy of Law which, alas, we will not be able to pursue at this time.18
It is important, is this regard, to note that the body and practice of Law itself recognizes, indeed proceeds on the assumption of, "objective rationality." After all, what is a "trial" but an exercise in same. And what are "rules of evidence," if not explications and applications of objective "rules of rational inference"? These components of Law might be characterized as "devices deliberately designed to yield truthful conclusions from an array of facts" which rather accurately describes "logic". It should therefore seem strange indeed that defendants, whose very freedom and property are at stake in a public exercise of applied "objective rationality" (i.e., their trial), should be denied the opportunity to present, in their defense, the testimony of an expert in "rational inference." This is especially so if the defendants' plea is "justification by necessity," based upon a "reasonable and honest belief"
On "Usurping" the Function of the Judge and Jury: We come at last to the point which, according to the hearing transcript, seems to have weighed most significantly upon the Judge's decision not to hear the philosopher's testimony. To repeat the well-chosen and well directed words of the Prosecutor, Mr. Foster: "
After extensive consultation with interested attorneys, and careful examination of the transcript, I must concede that the Prosecutor had a strong point here at least in the context of a pre-trial hearing. However, as my legal consultants also pointed out, the prosecutor's objection might lose most of its force if it is raised again in a trial before a jury of ordinary citizens. In truth, a judge is an expert in "reasonableness," particularly in "rules of evidence." It is his task to "draw inferences" from material brought before him in a hearing. He might thus be inclined to resist, and perhaps even resent, a suggestion that he might be "assisted" by an expert in the disciplined study of "rational inference." Still, in this case, "resentment" may have obstructed sound judgment from the bench. For a philosopher's training and expertise is not a mere reiteration of legal education. (Still less is it a reiteration of the "common sense" of ordinary citizens who sit on juries). The training and practice in critical thinking that is acquired in the education and the career of the professional philosopher is, in many important aspects, a thing apart from the acquired skills of a jurist. I dare say that if the judge had put a philosopher on the stand, he might have been genuinely informed even astonished at what he could have learned from the witness. At the very least, the opportunity should have been allowed.
We close this section with a reiteration of a now-familiar question: Why should the expert testimony of scientists, engineers, and others, be allowed at a hearing on a "defense of necessity," and not the testimony of a philosopher? The fact that the judge readily admitted the testimony of a parade of "expert witnesses" as to matters of fact, clearly indicates his acceptance of a plea of "objective rationality." But why the allowance of testimony as to "facts," but not to the soundness of inferences? The most apparent reason for this exclusion, I believe, is the one just noted: namely, that the prospective witness was being offered to do the judge's work, work that the judge was quite qualified and even required to do himself, namely, to evaluate a claim of "reasonableness."19 Perhaps that decision was soundly based upon established legal principle and precedent. Perhaps it was not. I will not further pursue that question of legal scholarship. My more fundamental question is this: Aside from the tradition and practice of law, and in the context of moral and political philosophy, should the testimony of a philosopher as to "objective reasonableness" be admitted in a hearing, and a trial, involving a "defense of justification by necessity." To that question we now turn.
The Philosopher's Role in Court
In a "defense of necessity," a philosopher might (as in this case) be called upon to testify to the success of the defendants' attempt to draw, from available facts, "reasonable" inferences that prompt them to initiate direct action in violation of a law. The philosopher's task, in other words, is to judge the "objective reasonableness" of those inferences. How is the philosopher to make that assessment? To what standards of rationality are the defendants' to be held? Can ordinary citizens, who take it upon themselves to violate the law on grounds of "necessity," be required to think and act with the rational clarity, coherence and consistency that a philosopher expects of his peers? Why should ordinary citizens be expected to be rational at all, much less to be judged by the standards of rationality set by professional philosophers?
"Naive Wisdom": Ordinary citizens can be held to standards of objective rationality for the simple reason that the capacity for "rational" thought and action is distributed, in various degrees, throughout the entire population.20 Only the most arrogant philosophers would think to claim that rationality is the exclusive possession of their profession. However, since they give deliberate, explicit and concentrated attention to "reasonableness" as such, philosophers might appropriately be consulted to assess the degree to which certain individuals have realized their capacities for rational thought and action. To put the matter another way, while a philosopher might not be remarkably more rational than an ordinary citizen, the philosopher should be a better judge of rationality. Let's see how this might be so.
"The rational sense" -- the ability to be reasonable, without explicitly knowing the "rules" or rationality -- is part of what I call "naive wisdom." Another aspect thereof is "the moral sense." In a recent work, I observe that moral judgment:
As John Rawls so effectively suggests, "the rational sense" and "the moral sense" can be usefully compared to the "grammatical sense." In the same essay, I elaborate the point:
Young children, and uneducated persons in general, can speak their native languages with correct grammar and do so without a remote notion of the rules that they are thereby following. Moreover, native speakers acquire a "sense" of grammatical "correctness" without taking courses in grammar that explicate the rules they unconsciously utilize. In a word, one can "know how" to speak grammatically without "knowing what" the rules are that he is following.
Thus, just as a linguist might be a spectator and evaluator of another's use of grammar, so too might a philosopher be a spectator and evaluator of a non-philosopher's thought-processes. As an example, consider the hypothetical testimony of a defendant at the Diablo Canyon trial. Such an individual might say, "there is something fishy about the Rasmussen Report but I can't quite say what it is. It just doesn't seem reasonable. Maybe that it 'compares apples and oranges' that is, events we know about and can count with events that we can only imagine." To this a philosopher might reply: "Your hunch is very acute. Now let me explain the difference between 'empirical probability' and 'hypothetical probability." Or the defendant might say, "I just don't see how the nuclear industry can tell us that their power plants are safe, and still insist that they must have the Price Anderson Act. It just doesn't make sense." The philosopher might add, "indeed it doesn't! Now let me suggest why it doesn't make sense."23
Is this a proper role for a philosopher to assume in court? Consider some analogous cases: "The water tasted as if it were potable." "The sentence seemed grammatical." "The bridge looked and felt safe." Might the veracity of such remarks by "ordinary citizens" be relevantly testified to by, respectively, a bacteriologist, a grammarian, a civil engineer? Certainly! Why then should a philosopher not testify to a citizen's claim that "the conclusion seemed reasonable" or "the proponents' assurances seemed unconvincing." It is difficult to find any distinguishing features that invalidate this analogy. Ordinary citizens will, as they should, gain information through the public media, ordinary experience, or non-technical documents. From this information, they will draw inferences, some of which might move them to significant action for which they may be called into account before the law. Why should these citizens not benefit from the aid, insights and assistance of experts in the discipline that explicitly studies rational inference? Why should they not be so assisted, not only as they make these inferences and act upon them, but also as they are held accountable for their actions before courts of law?
The Dissenter as Gambler: According to the criteria of "justification by necessity," the citizen who breaks the law out of a perceived necessity, must have (among other things) a "rational and honest belief' of the imminence of danger. In breaking the law on the basis of this belief, he is willingly putting himself at risk, and staking his freedom, reputation, etc., in a public trial. He is, in a word, taking a gamble a gamble that he is correct. Part of this gamble is based upon the supposition that there are good grounds for this belief in imminent danger, and that those ground include an array of relevant, verifiable and objective facts.
But rules of inference and procedures of conceptual analysis and clarification are also objective. The defendant, then, is staking his freedom on the supposition that he has a good case based upon objective facts and demonstrably sound inferences therefrom. And he has the responsibility (through the exercise of "objective reasonableness") to do his best to think through, rationally, the grounds and implications of his action, and to be prepared to display the rationality thereof. It is therefore relevant to the case to determine the defendant's success in his attempts to think rationally; to determine, that is, whether or not he has, in fact, "brought it off." In making this assessment, the philosopher's professional expertise, and thus his testimony, is clearly relevant.
Essential to a gamble is the possibility (at times the likelihood) of failure. Thus the dissenting citizen may fail in his attempt to be objectively rational. In some cases, then its "tough luck" for the dissident. But this only emphasizes the burden of responsibility upon the dissenter to achieve, prior to taking direct and explicit action, autonomous, responsible, and objectively identifiable capacities for rational thought and action. Whether or not he has fulfilled this responsibility to himself, his cause, and his community is a matter that can be testified to by an expert namely a philosopher.
Some Implications: Allowing a defense of "objective reasonableness of belief" has interesting implications. (a) A citizen who is contemplating a violation of the law "by necessity" (on the grounds of a rational belief in danger) has a responsibility to be reasonable and to deliberately "see to it" that he is reasonable. This put on him the onus of "getting his logical act together." (b) Conversely, it makes the individual who acts impulsively more liable before the law. Finally, (c) it places an onus on the legislator and the administrator of the laws to pass and administer laws "rationally" -- and to do so in a way that can be demonstrated to be rational, i.e., the enactment and administration of laws should be "objectively reasonable." For if this final condition is not met, there may well be a number of citizens who will be equipped, through direct action and an appeal to "objective reasonableness," to successfully defy and overturn that law. For these and other reasons, the legal recognition of the force of "objective rationality" is a social benefit. On the other hand, if "reasonableness" is construed merely as "strong subjective belief," the independent and common ground of debate and adjudication, and the objective nexus of resolution, is indeterminate, indeterminable, and probably unattainable. The citizen may thus lose a major incentive to be, or become, informed or rational, at least in civic and political matters. All this would seriously compromise the "rationality" both of the legal process and of citizen participation in the political process.
A Final Plea to Admit the Philosopher to Court: Suppose a citizen takes it upon himself to deliberately break the law, on what he ('subjectively') perceives to be "grounds of necessity." If an "objective test" of reasonableness is allowed in court (as it apparently is, at least implicitly), then the citizen, if brought to trial, should have the opportunity to demonstrate the validity of his claim of "reasonableness." "Rationality," let us recall, consists of both the apprehension of relevant facts and the capacity to draw valid inferences. There is a professional discipline whose primary business is to study "reasonable inference and belief" i.e., the discipline of philosophy. If a certified and recognized practitioner of that discipline is willing to testify to the "rationality" of the citizen's act of dissent, why should that testimony not be allowed? Is it because "anybody," in particular, an ordinary juror, can pass judgment on "reasonableness?" To some degree, that may be so. But the assertion that "anyman's" opinion on "rationality" is as good as a trained philosopher's, is analogous to saying that the average person's opinion regarding medicine is as good as a doctor's, or that common lay understanding of law is as good as a judge's. All such claims are based upon the extraordinary presumption that several years of post-graduate training, plus teaching, research and writing in the profession, adds not an iota of competence in the field of study thus deliberately pursued. This is not true of Law or Medicine, and it is not true of the disciplined study of reasonableness -- philosophy.
A Note About this Draft: (c 1983) This is a work in
progress, "frozen," in this version, to serve as a point of discussion in
the Reason Foundation Summer Seminar, meeting August 18, 1982. I hope and
expect that some of the comments of that meeting will favorably affect the
subsequent evolution of this piece. This version is untypical of my work, in
that it is relatively short on "bookwork" research and long on research by
interview. The reason is readily apparent: I will soon be leaving the Santa
Barbara area, and thus the opportunity to consult with several individuals
who are directly involved with this hearing and pending trial. Wherever I go
(immediately, to Colorado), I will be close to a university library and a
Law School. Accordingly, the journalistic work is primarily behind me, and
the scholarly work is directly ahead. This early phase of my work has been
greatly assisted by interviews with J. C. Smith, (Professor of Law,
University of British Columbia), Mr. Marc McGinnis (Director, Environmental
Defense Center of Santa Barbara), and Mr. Richard Frishman and Ms. Clare
Conk (attorneys for the Defense in this case), who also provided me with a
copy of the Defense brief and, at the earliest possible moment, relevant
portions of the hearing transcript.
Pages 5 & 6 of Defense brief filed with the Municipal
Court of the San Luis Obispo Judicial District, County of San Luis Obispo,
California, April 28, 1982, by Attorneys Richard A. Frishman and Clare M.
Conk. (Hereafter, "Defense Brief').
These points are drawn from sources far too numerous to
identify in full. Prominent among the "Anti Nuclear" sources are "The
Nuclear Blowdown" section of the Friends of the Earths newsletter, "Not Man
Apart," several books and articles by Amory Lovins and by John Gofman, and,
most prominently, Kristin Shrader-Frechette's Nuclear Power and Public
Policy (Dordrecht/Boston: D. Reidel, 1980). Prominent among the "Pro
Nuclear" sources are works by Hans Bethe, Harold Lewis, Alvin Weinberg, and
the Rasmussen Report. (One of the most damaging documents to the pro nuclear
cases that I have encountered is "Atomic Energy Facts," printed by the
Atomic Industry Forum in defense of nuclear power. This little tract
furnishes a dazzling display of fallacies, and has thus been put to good use
in my course in "Critical Thinking and Environmental Rhetoric"). My
preferred source of balanced reports and information has been Science
Court transcripts, of course, record extemporaneous oral
presentations, and not finished, polished prose. Moreover, the court
proceedings find their way to the printed page through the ear, fingers,
stenotype and typewriter of the court recorder. While this is a remarkable
feat, it is nonetheless liable to error. Accordingly, quotations from the
hearing will be "improved" by omitting conversational redundancies, false
starts, and loose ends, and by correcting mistakes in spelling or in word
recognition by the recorder.
Because Ms. Conk is not using precise philosophical
terminology here, a paraphrase might be in order: "Where we have been able
to establish factual scientific premises through expert testimony, we have
done so. But to leave the validity of inferences from those beliefs in the
realm of conjecture, would be a poor defense..."
I am grateful to J. C. Smith for explaining the
over-riding significance of this point. (Later, while speaking to a
different and technical point, the other defense attorney, Mr. Frishman, may
have given credence to the prosecutors objection and the judge's concern:
"In part, what Dr. Partridge would testify to, would be his expertise on the
overall question of the objective view of the overall reasonableness of the
defendants' views." [Emphases added]).
This reply was to prove mischievous further on, but
perhaps less than grave. In a careless but opportunistic paraphrase
(presumably of this remark), Mr. Foster later (p. 63) said "as counsel
admitted, [the defendants'] position could be illogical but reasonable."
Still later, Ms. Conk protested this paraphrase, and was met with the
following reply: "I believe the record will show that counsel said that it
was possible [for] illogical reason[ing] to exist. .. I'll stand by whatever
the record says. Unfortunately for Mr. Foster, the record does not bear him
out. (The exact quotation above is "... it was possibly illogical reason to
exist." I trust that I have corrected the court reporter's error).
To which Mr. Frishman replied, "The jury [not the court]
would be the trier of fact in this case."
J. C. Smith points out a significant ambiguity here: Did
Mr. Foster mean "credibility" of the beliefs themselves, or does he mean the
"credibility" of the defendants' claim to have had those beliefs. It was
apparently not much to the advantage of the Prosecutor's position to
explicate this equivocation.
I understand that, according to Section 352 of the
California Evidence Code, a judge has this discretion.
See page 13 of this paper.
Personal conversation, August 14, 1982.
Defense brief, p. 15.
But this concept could be troublesome for a prosecutor
as well. For if a legal defense in terms of one's "rationality" is not to
include a deliberate attempt to be informed and to draw conclusions through
sound and careful reasoning, then merely a strong indoctrination, hunch or
belief, however ill-founded, might suffice to meet this test of
"rationality." This can threaten the social order by making dissent too
easy. "Objective rationality" places a burden of responsibility on the
dissenter that "subjective rationality," as defined above, does not.
In Southern California, not an improbable defense.
17. As Jay Smith explained it to me, in the British legal tradition, the subjective test of rationality is: Given the knowledge, education, intelligence, etc. (i.e., the "relevant circumstances") of the defendant, was it "reasonable" of that person to reach that conclusion? The objective test is: Would the (generalized) "reasonable man" reach this conclusion? The distinction was articulated in the nineteenth century case of Vaughan vs. Menlove. In this instance, an ignorant farmer allowed a hayrick to ignite by spontaneous combustion. His defense was that he was not in a position to know that this would happen, and therefore that it was reasonable for him to assume that it would not. The prosecution's response was that it was not the subjective "feeling of certainty" that mattered, but rather the belief of "the rational man" (construed as a kind of abstraction). On this ground, the judgment was made against the defendant. Thus, in Vaughan vs. Menlove, the defendant was liable for not acquiring the acceptable standard of reasonableness. It follows that it is the citizen's responsibility to become "reasonable" according to a sense and to standards that can be judged by the ordinary citizen who might be called to serve on a jury ("the man on the Clapham omnibus"). But can the ordinary citizen be persuaded, by a philosopher's skillful use of formal reasoning, to decide against prevailing community standards? Well, perhaps. It is an uphill battle, to be sure, but not without remarkable instances of success. (Cf. Stephen Vincent Benet's, "The Devil and Daniel Webster"). But then, there is also the case of Socrates.
18. Let us mark this distinction with the terms "communal rationality" (the "sociological datum") and "formal rationality" (as consistent with rules of inference). An appeal to "communal rationality" (i.e. widespread acceptance in the community of the accused) might have the result, say, of acquitting Adolf Eichmann or the Nuremburg Defendants. On the other hand, if an appeal to "formal rationality" is allowed and recognized, a defense of dissent and resistance through a citation of the Nuremburg prosecution might be successful. Still other implications are suggested in the penultimate paragraph of this paper.
19. In a conversation on Monday, August 16,1982, attorney Marc McGinnes and I speculated that the following factors may also have been at work in the judge's decision. (Mr. McGinnes is the Director of the Environmental Defense Center of Santa Barbara):
Perhaps the judge was concerned
that he might be setting a precedent.
Scientific testimony may have been preferred due to
the "hardness" of the data to be presented (i.e., measurable and
verifiable). Philosophy is widely perceived to deal in "soft" data
(i.e., vague, ambiguous, controversial, unverifiable). (However, logic
is the most secure and least controversial field of philosophy).
Experts allowed on the stand spoke to the specifics of the situation at Diablo canyon. Philosophers deal with "generalities" in this case, to "reasonableness in general." (But scientific experts bring general rules and principles to their analysis of specific circumstances. Otherwise, their testimony is useless. The same may be said for philosophers testifying as to "reasonableness").
This, I submit, is an outstanding sample of the sort of work a philosopher might do in court -- in fact, in the very case under consideration.