Law was created by and for humankind.

But is unkind to humans.

Inhumane.

As such, it deserves its day in the dock.

No –

Seconding thought, it better not be questioned in person.

By a person.

That’ll prove prejudicial.

It can’t be trusted, after all.

It’s certain to beguile us with its high-falutin language.

Sophistical sleights of tongue.

Best do it from afar, then.

Via video monitor.

As if it were frail.

Vulnerable.

All in all, it merits –

Deserves –

An ersatz Turing test.

Or imitation of same.

The game?

Human or law?

Humane or legal.

GLADIATORIAL AMBIT

The Circus Maximus is, today, associated with a single event.

At its height, however, the first, largest stadium in ancient Rome presented a programme of ludi.

Religious ceremonies –

Poetry recitals –

Plays –

Horse and chariot races –

Athletics.

Cinema invariably industrial-light-and-magics it up as an architectural wonder.

But, located on agricultural land, the earliest events played out on a cleared field.

Incorporated a couple of turning posts.

A few shrines.

Banks for spectators to mass on.

The most popular displays were gladiatorial combats.

For all the awesome architecture, then –

The exalting oratory –

Inspiring sportsmanship –

Most came to witness enemies of the state being put to death.

Modern day boxing is a sublimate.

Its spectators are kayfabed by the splendour of the venue –

The poetical trash talk –

Expert analysis –

Into forgetting that they’re witnessing a brawl.

The competitors best efforts to murder one another.

No –

It’s nothing like Ancient Rome, we tell ourselves.

So, we’re nothing like them.

Likewise, our legal system is adjudged superior to its ancient/early-modern predecessors.

Not different only.

More complex merely.

Though its show and tell may be as crude for being put on in a purpose-built auditorium.

As cruel for being conducted by learned professionals and officials.

Codified in fat books and journals.

TURING TESTAMENT

Alan Turing’s imitation game was intended to test a machine’s ability to exhibit intelligence indistinguishable from that of a human subject.

The method?

An arbiter would judge a natural language conversation between a person and a machine.

The interaction would be conducted via computer keyboard and screen.

Restricted to text.

So, not rely on either subject’s ability to render speech.

If it proved impossible to distinguish machine from human, the former would be judged to have passed the test.

Results wouldn’t depend on its ability to answer questions correctly.

Only how closely they might resemble those a human might give.

What sort of questions?

Will X tell me whether X plays chess?

Tell me the length of his/her hair?

In the first line of the sonnet that reads –

‘Shall I compare thee to a summer’s day’ –

Would a spring day serve as well?

INSTITUTIONAL BIAS

How would institutions fare if submitted to similar scrutiny?

The matter is moot because impracticable.

Impossible.

But perhaps as a thought experiment -?

A thought experiment based on a thought experiment.

Law should commit itself to being the first subject.

Be obliged to prove it isn’t as gullible as artificial intelligence.

As rule-bound as a robot.

Intransigent as Mr. Spock.

SUGGESTED QUESTIONS

JUST THE FACTS, MAN

Does a witness state what they believe to be the case always?

The fact of the matter as they see it precisely?

Never respond to the moment merely?

The unsociable interaction?

Entirely artificial situation?

Unlike every other animal, are they are immune to mood?

Fatigue?

Restiveness?

UNCOMPREHENDING COMPREHENSION

If A states X on such and such a date, is it their full understanding of the matter?

Their genuine belief?

Would your answer be different if it were demonstrated that the question that prompted their reply had been poorly expressed?

Delivered?

Plain wrong?

THE MEANING OF SAY WHAT YOU MEAN

Does a witness respond with flawless elocution always?

Do you believe that what they say is what they mean necessarily?

That what they mean is true?

Is truth?

OF NO CHARACTER

Does a witness never indulge irony?

Resort to poetry?

Exaggerate?

Exhibit any trait of character?

Humanity, merely?

(If so, would they fail this test?)

Are they as literal-minded as the law?

As transparent?

REPUTATION PROCEEDS ESSENCE

Is a witness who pursues a respected profession necessarily trustworthy?

A witness who pursues a disreputable profession necessarily untrustworthy?

FORM GOT

Is a witness’ criminal record just cause to bar them from giving testimony?

Any form of criminal activity?

Committed at any time in their life?

GIVING THE LIE TO LYING

Preamble:

Some ideas are so stupid only philosophers believe them.

One such is that ordinary language claims are logical propositions.

Can be assessed on that basis.

Sustain similar rigour.

Be judged true or false.

Thus, Epimenides the Cretan’s claim –

That ‘all Cretans are liars’ –

Is an insuperable paradox.

Not an example of hyperbole.

Law argues likewise.

Given this:

Is a witness proven to have lied once in their lives an inveterate liar?

Consequently, never to be trusted?

EXPERTISE TEASE

Exordium:

An expert is invited to give evidence.

Presented as a world authority in their field.

Called to speak truth.

Relate relevant science only.

The very latest.

Not offer opinion.

Promote prejudice.

This being the case, should they be appointed by the court?

On behalf of judge/jury?

Or commissioned by counsel?

Defence?

Prosecution?

Defence and prosecution?

What does it mean for two world authorities to present diametrically opposed expert opinions?

Mutually exclusive conjectures?

Should an expert be subpoenaed if their testimony undermines one bench’s argument?

Both benches’ arguments?

Is it problematic that they are called by an advocate to prove their own argument only?

Not called by same if doing so would do otherwise?

TRUTH NO LIE

Does truth exist?

The truth?

Not a truth?

Truths?

PROSPECTING PERSPECTIVE

Is perspective irrelevant?

Can it be overcome?

If so, how to account for the fact that few philosophers would agree?

SCORING THE LAW

The law’s responses promote a view of humanity –

Reality –

That no one would share before they enter a courtroom.

Credit the second they leave it.

That lawyers renounce whenever it serves their causa.

When subjectivity –

Complexity –

Revelation of same –

Has objective worth.

Then, they deconstruct the process with abandon.

Say, if the impeachment of a major political figure is at stake.

Then, assuring the integrity of every witness is sacrosanct.

Countermining same, rather.

However, an advocate –

The selfsame one –

May conclude otherwise when a don is in the dock.

(Of the Corleone kind.)

Then, it isn’t necessary –

Possible –

To prosecute a case based on the testimony of nuns and choirboys solely.

So, they may defer doubts about the procedure’s failings.

Its subjective fallibility.

And – lo! – absolute truth is attainable again.

SOPHISTRY HONESTLY

We dismiss ancient sophism.

Regard it as a pejorative.

Cousin to cant.

Casuistry.

Its sceptical subjectivism.

Objective cynicism.

But readily entrust pursuit of our highest value –

Truth –

To its latter day analogue:

The judicial system.

Legal sophists are content to defend the indefensible.

If the petition has been served them.

In so doing –

And in so much as they succeed –

They defeat their object.

Prove there is no such thing as justice.

Truth.

Only persuasive argument.

Effective elocution.

When these convince –

Or arouse sufficient doubt –

Acquittal/guilt follows.

In granting justice to the unjustifiable, they condemn us all.

THE GREAT DEFENDER

There are salesmen of the soul who always prevail with a crowd.

After they’ve left the room, however –

And the temperature has dropped –

We are perplexed.

What happened?

The other party had all the evidence, didn’t they?

The facts.

Sir Edward Marshall Hall, QC/KC, was one such.

The Victorian/Edwardian barrister rescued many a murderer from a go on the gallows.

Though few considered him proficient at presenting legal argument.

Instead, he relied on his oratorical skills.

As with The Bard’s comical-historical, the plain text may move few today.

But must have set the table on a roar when delivered in person.

By a persona with dramatic gravitas.

Marshall Hall only cast aside a career on the stage due to his inability to learn lines.

Redirected his skills to the courtroom.

Regarded it as his theatre.

The jurors his audience.

Staged business to win them over.

This wasn’t regarded as unseemly, oddly.

Then, little is in law.

As long as participants drag themselves up suitably.

Defer to the judge respectfully.

LEGAL LEGERDEMAIN

Should Marshall Hall have been allowed to play to the gallery?

Indulge in theatrics?

He had to make the best of the brief docked in his harbour.

Defend his client at any cost.

And, surely, it’s permissible to engage in any expedient if your cause is just.

Pursues a higher truth.

But here’s the moral hazard:

Who decides what that is?

Objection:

Judges would have censured him had he strayed beyond the bounds.

Sustained.

But this wouldn’t have lead to the subject case being thrown out.

The recommendation that the QC/KC be disbarred.

For the minor offence of peddling a suspect argument.

Consequently, Marshall Hall had no compunction about defending clients via ad hominem appeals.

Attacks.

Deconstructing the process –

Or undermining witnesses –

Rather than disproving –

Even touching on –

The prosecutor’s argument.

UNAPPEALING APPEALS

Arrant gamesmanship will be unmasked at the appeal, surely?

Perhaps.

But that will be prosecuted by another advocate probably.

Before a different judge and jury almost certainly.

On another day.

And all that matters is that Marshall Hall prevails now.

Here.

Besides, appeals pursue actionable abuses only.

Condemn legal representatives proven to have dissembled demonstrably.

Unlawfully.

And it’s not unlawful to obfuscate.

Resort to sophistry.

Cant.

Consequently, no judge will direct a jury on the probable cause for Marshall Hall’s antics.

Make them face the fact that his stage trickery suggests he has no prima facie case.

INSTITUTIONS DESERVE TO BE INSTITUTIONALISED

The more one studies prototypes for our civilisation’s institutions, the less one delineates advancement proper.

Democracy, liberty, culture –

Have we added to their gains?

More than self-consciousness, that is.

Institutionalised –

Bureaucratised –

Form has been mistaken for subject.

Process for object.

Mechanics for mission.

All we’ve done is riff off their motifs.

Mined each medium for expression not message.

All our efforts have amounted to is exegesis.

Another symptom of post-modern angst.

We articulate as they never did.

Elaborate as they never could.

If this proved effective, it might be defensible.

But every emendation is circumvented the moment it’s minted.

Shot through a loophole.

First by those best versed in it.

Proving that a shield is also a cudgel.

That every new rule inspires novel misrule.

A fresh workaround.

Necessitating another rule.

Another workaround.

All that happens is that ante is upped.

Complexity.

Prolixity.

Never clarity.

Certainty.

In professionalising the process –

Adding all that analysis –

Evaluation –

Over-elaboration –

We have not advanced one daktylos towards its object.

Drubbed by expertise, it remains as elusive as ever.

THE UNGRACIOUS ONES

Our legal systems evolved to overcome the inadequacies of earlier efforts.

Greek –

Roman –

English Common –

Et cetera.

But in so doing, bumbledom has become confused with assessment of the issues.

Thus, Ancient Greek justice, say, was as good as our own.

As bad, rather.

Only appeared inexpert because compressed.

Not decompressed.

Fragmented.

Compartmentalised.

Their litigants gave testimony.

Their jurors immediate judgement on same.

Cruel.

Clear.

Clean.

Transparent.

And ours?

Witnesses give evidence.

Advocates represent it.

Judges referee it.

Juries assess it.

Appeals boards review it.

Experts critique it.

Et cetera.

MOTIVEFUL CRIME-FIGHTING

We have added levels of detachment –

Belt –

Braces –

Garters –

Bicycle clips –

In an effort to prevent corruption.

Promote fairness.

How is that faring?

A major tendo achilleus in the Greek model was that an illiterate farmer might have been compelled to wrestle against Socrates.

The failure of ours is that an ordinary stiff might be forced to face-off a corporation.

Not its EO, of course.

Rather, his bulwark of top-class lawyers.

Mobsters threaten to encase anyone dumb enough to go up against them in a concrete overcoat.

Their corporate counterparts menace those who dare challenge them with a legal rubbing out.

How?

First off, by insisting a case be heard in courtrooms light years from the little litigant’s home.

With billionaire’s engaged in a private space-race, it won’t be long before stars insist their tribunals be warred in a galaxy far, far away.

Things aren’t much improved if the poorer plaintiff can afford the trip.

Marshall Hall will keep them in court till they tire of the ordeal.

Or have their resources drained entirely.

So, there’s no need for the big boss to enforce his will at the point of a gun any more.

(And risk suffering a stretch for same.)

Now he can exact retribution at the end of a pen.

Do all of them do this?

If it satisfies a simple sum.

Subtract estimated cost of conscripting counsel from that of conceding culpability.

(And paying the subsequent fine.)

No G-Man can touch you for doing as much.

Is there a get-out-of-jail card for this?

Prevent CEOs from being permitted to flex commissioned legal muscle.

Force them to front their cases.

Waste their own time.

Money.

Court dates would come around sooner, then.

And hearings would be shorter.

Why hasn’t this happened?

Which profession did a sizeable proportion of your politicians practise formerly?

Accordingly, two and a half millennia on, we’ve returned to the original position.

Ancient Athens’ system was subverted by the asymmetrical verbal dexterity of claimant and contestant.

Ours has degenerated into an agon of commissioned competences.

Exchanged iniquity for inequity.

Disparity of eloquence for inequality of economy.

The relative costs of counsel.

The motive?

ALL OUR SINS REMEMBERED

The Reid technique is a police interrogation methodology developed in the United States.

The psychology at its kernel had a use-by-date in the nineteen-fifties.

(The same decade the Turing test originated, coincidentally.)

Nevertheless, it’s still in use.

Why?

It’s effective in extracting confessions.

Many of them false.

The Innocence Project bases its appeals on DNA exonerations.

As of July 2018, 102 of its cases proved to be based on false confessions.

True perpetrators were identified in 76 of these.

In the interim, they went on to commit 48 additional crimes.

Including 25 murders and 14 rapes.

Similarly, psychologists long ago falsified faith in our ability to recall events flawlessly.

Demonstrated that memories laid down five minutes ago are unreliable.

Nevertheless, the judicial system places trust in eyewitness statements.

Recollections of events that occurred five years ago.

Longer.

Regards all as having perfect recall.

Why?

Recalling Reid, doing so yields results.

Results in doing.

So, as ever, we do what we can.

Not what we ought to do.

And legal advocates must do.

(Particularly when they can charge by the hour for so doing.)

Without the conceit of total recall, they would have less to do.

Accrue fewer billable hours.

Why so cynical?

Okay, here’s an alternative motive:

We do to cure our consciences.

Make us believe –

Make believe –

We’ve done –

What is sufficient?

No –

What is enough.

Can say:

Ah, well, I tried.

DENOUNCING SENTENCE

At the conclusion of a case –

Just before pronouncing sentence –

Judges permit themselves to wax subjective.

Shackles off –

Black caps on –

They believe they are entitled to address the accused as the guilty.

And why not?

The process has proven as much.

The accused admitted as much.

Confessed.

And there was evidence to substantiate it.

Overwhelming.

Conclusive.

Yes –

But the judge doesn’t know for all that.

Not beyond a shadow.

Even the dupe in the dock may be in the dark.

Nevertheless, the judge turns as righteous as a god.

As vindictive.

Did so in every one of those Innocence Project miscarriages.

The 76 condemnations that resulted –

Decades later, in many instances –

In exonerations.

Coppola’s revision of Conrad’s Heart of Darkness –

Apocalypse Now –

Offers a caution.

When Brando’s Colonel Kurtz claims:

‘You have a right to kill me.

You have a right to do that.

But you have no right to judge me.’