Reasonable And Probable Grounds and Philosophy’s Theory of Knowledge

In an effort to increase my knowledge, I decided to take a MOOC or Massive Open On-line Course offered by Coursera. I chose Introduction of Philosophy taught through the University of Edinburgh. Admittedly, I am finding the course a bit elementary but what did interest me was the lecture on Epistemology and the Theory of Knowledge, a philosophical area concerned with “knowledge-that” as opposed to “knowledge-how.” “Knowledge how” is how we know to do certain tasks – how to build a birdhouse, for instance. “Knowledge that” or propositional knowledge involves knowing that birds fly or knowing that s.265 is the assault section in the Criminal Code.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as

… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

In the Supreme Court of Canada, the Court came to similar conclusions in Bernshaw when Madame Justice L’Heureux-Dube commented on previous decisions, which called rpg “credibility-based probability” and “reasonable probability.” Despite, no single definition for the concept, there seems to be a very good general understanding of what RPG means. This differs from the concept of “reasonable suspicion,” which, according to Kang-Brown “means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As discussed in a previous blog, the SCC will clarify “reasonable suspicion,” hopefully, when they release the judgments on two sniffer dog cases, MacKenzie and Chehil.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?

Legally Minded Books to Read

In my last posting, we enjoyed some #longreads and today we will discuss even longer ones. The following is my list of 5 legally minded books to read over the holidays:

1. Crime and Punishment by Fyodor Dostoevsky circa 1956. This book stays with you. There is no other book, which can climb into the mind of a killer with so much detail, perspective, and pity. The horror of the act is observed in the backdrop of a ruthless Russia, where poverty, corruption, and greed reign. Yet, it is tempered by a beautiful and delicate theme of redemption, which is guaranteed to leave you weeping.

2. Bleak House by Charles Dickens circa 1852. I love this book. There is no better opening chapter of a book like this one as the Court of Chancery becomes a metaphor for the thick fog spreading through London like the Angel of Death sweeping through Biblical Egypt when the Pharaoh refused to let the Israelites leave. And so too does the story spread as the wards in Jarndyce vs. Jarndyce weave through the London streets together with delicious characters like Guppy, Tulkinghorn, and Clemm.  The twists and turns in this book is pure Dickens as is the language and the tragic consequences.

3. The Onion Field by Joseph Wambaugh circa 1973. This is another book, which although I read many years ago, I think and ponder about every now and then. This true crime novel, a first for Wambaugh, chronicles a horrific crime in a California onion field and the subsequent court case, which had far reaching consequences both on a personal and societal level. Wambaugh writes a moving account of a factual case and it reads like fiction.

4. A Void (La Disparition) by Georges Perec circa 1994. This quirky book is the kind of experimental writing I find fascinating. A book written completely without the vowel "e", Perec manages to use this omission or void to highlight the Kafkaesque nature of the narrative. Originally written in French, where the vowel e is even more essential, the book is actually highly biographical. Perec, an orphaned survivor of the Holocaust, finds in his missing vowel the personal themes of loss, limitations, and emptiness.

5. Plato's Apology by Socrates. The wry wit employed by Plato as he excoriates the Senate must be experienced first hand by reading Socrates replay of Plato's trial, judgment, and death. It is brilliant rhetoric. Even to the end, Plato had the capacity to teach. Just as we today have much to learn from his logic and reasoning.