Theory on framework issues

Wednesday, April 6, 2011


I. The one-factor belief theorist's predicament

The key to understanding this account of epistemic attitude is what it denies: that the same attitude — belief — governs deliberation as well as action. The film Twelve Angry Men will illustrate the distinctions between the standard one-factor belief theory and my two-factor belief/opinion theory. The theories account differently for what transpired in Twelve Angry Men and what rationally justifies the dissenter's contradicting his ostensible epistemic equals. I assume that the dissenter was acting rationally. His conduct obviously compares favorably with the conformist jurors; yet, according to the belief theory, preferring his initial beliefs, after being informed that all of his epistemic equals disagreed, isn't rational. The belief/opinion theory resolves the anomalous conclusion implied by the belief theory.

Recall that the belief/opinion theory accounts for the anomaly by denying that the same epistemic attitude ordinarily governs outcome-determining action and guides deliberation. Common-denominator beliefs (the only epistemic attitude available to the belief theorist) leave little if any room for deliberation: deliberators would immediately agree. Since an average opinion constitutes a belief, the belief theorist tries to resolve the anomaly by resisting the averaging effects constitutive of belief to argue that the dissenter could credential himself as epistemically superior.

II. Justification for claims to epistemic superiority

A. Circular argument

Although justifications for the dissenter's epistemic certification are imaginable, those feasible apply under limited circumstances that don't do justice to our intuitions about the general role of dissenter. The dissenter's conduct is surprisingly hard to justify; when certifying epistemic superiority seems easy, the illusion comes from tacitly accepting a certain circular argument.

The dissenter's justification would be circular had the dissenter said, "Since the other jurors irrationally believe the prosecutor proved guilt beyond a reasonable doubt, my beliefs are credentiable, as proven when the other jurors refused to accept the inconclusiveness of the evidence." This "proof" is equivalent to "I am justified in believing defendant's guilt is unproven because of my epistemic superiority. I am justified in asserting my epistemic superiority because I believe the defendant's guilt is unproven." Certification of epistemic superiority must be based on independent evidence, meaning evidence different from that supporting the belief in dispute. The circular argument assumes the epistemic superiority it pretends to prove.

B. General traits

(1) Intelligence

To certify his epistemic superiority, the dissenter needs evidence — independent of the publicly displayed substance of their thinking — of the jurors' grades of thinking: he can't substantively assess the jurors' arguments and conclusions, because that's what's at stake: that argument is circular.

Without endorsing it, I'll construct a dissenter's argument based on independent evidence. Its major premise is that "general intelligence" predicts general rationality. The dissenter is barred from basing his self-certifying argument on beliefs about the matter at hand, but if the estimate is based on independent data, relative-intelligence estimates could serve as an independent criterion for epistemic superiority.

The dissenter might avoid circularity in his self-certifying argument by estimating jurors' relative intelligence based on independent evidence, such as complexity of speech, extensiveness of vocabulary, and coherence of organization. If the argument's assumptions are satisfied, the dissenter then could justify credentialing his own opinions. (Note that credentialing an opinion doesn't necessarily warrant privileging it enough to outweigh eleven other jurors.)

The argument based on intelligence works only if the other jurors don't have the opposite belief. If they think they're the smart ones, the dissenter hasn't justified his epistemic superiority, as the other jurors' claims would then have an equally strong epistemic position. (In reality, people who are wrong who think they're right don't always think they're smart, but they often do.)

(2) Conscientiousness

Some evidence for certification manifests an intermediate degree of independence. Rather than base his opinion on the very substance of the dispute (circular argument) or, on the other hand, on evidence independent from that substance (e.g., intelligence), the dissenter certifies his epistemic claims by comparing approaches to deliberation: the dissenter notes his own rational exercise of care, which he contrasts with other jurors' conclusion jumping. Whether the judgment of superior deliberative carefulness establishes epistemic superiority depends on the specifics of the dissenter's inference, but he might successfully justify his epistemic superiority by attributing habitual carelessness to the other jurors.

But justifiably characterizing the other deliberators as careless more often fails to establish epistemic superiority because deliberators' carelessness can't usually be divorced from their substantive conclusions. The jurors' dismissive attitude could be appropriate for an outcome as obvious as they believed this one was. An analysis — is the carelessness a general trait or part of the very opinion in question? — must support epistemic credentialing based on conscientiousness.

(3) General principle

The dissenter might reach for a general principle: nothing could be that simple. Allowing for its vagueness, the platitude holds true, but its truth is inadmissible in an endeavor seeking the same truth. Again, different solutions might obtain depending on specifics. If the other jurors agreed with the general proposition that nothing could be so simple, then demonstrating their inconsistency is part of the deliberation, but before the matter is deliberated, the jurors' self-contradiction doesn't credential the dissenter. After all, worse contradictions may lurk in the dissenter's beliefs.

(4) Inadequacy of arguments based on general traits.

The bite of Aumann's agreement theorem is hard to evade: often little room is available for certification. Even after finding a loophole, we are still without an account of the dissenter's rationality, inasmuch as the dissenter represents a type; if the dissenter has no justifiable claim to epistemic superiority, we wouldn't want a similarly situated juror to collapse his opinion into a group-based belief. In complete and acknowledged epistemic non-superiority — even epistemic inferiority — deliberation depends on the dissenter's expressing his opinion, notwithstanding that his rational belief should conform to an overwhelming majority.

III. Lowering the disagreement threshold for rational deliberation.

If epistemic superiority doesn't justify the dissenter's non-conformity, the one-factor belief theorist might try to argue that ordinary belief is sufficiently spacious to contain deliberation. If epistemic superiority doesn't justify the dissenter's non-conformity, belief theorists must justify his dissension employing belief alone, contending that the deliberative process requires less justification than the belief/opinion theorist demands. The belief theorist would argue that deliberation isn't foreclosed because, in general, rational jurors deliberate.

A. Reasonable doubt.

The belief theorist who takes this tack must account for deliberation's rationality by claiming that the dissenter's position — when included in an averaging process congealing one belief from many — moves the average of the consensual belief beyond the reasonable-doubt threshold. The jury majority might temper its certainty enough to move the group average to within the reasonable-doubt range. Belief theorists might argue that this scintilla of doubt justifies the dissenter's advocacy. Without positing opinions, belief theorists maintain that a belief's slight dubiety justifies a jury's deliberation.

But consider another possibility: the dissenter himself believed there was only a scintilla of exonerating evidence, while other jurors believed there was none. Then, the average of the initial beliefs would congeal in a belief remaining beyond reasonable doubt. In this state, there would be no deliberation. Moreover, if the group belief were within the reasonable doubt range, the debate over a slight difference in estimated probability of guilt would be feeble.

B. Devil's advocacy.

The remaining argument available to belief theorists is that rational jurors would recognize the desirability of full debate, despite the convergence of opinions, and they would appoint the dissenter as devil's advocate. This twist, would argue belief theorists, allows them to account for productive debate based on its rational necessity. Occurring regularly, the practice would blur the distinction between the belief and the belief/opinion theories, only a single but important difference remaining: under the belief theory, the advocate's identity is irrelevant. Consensual belief, unsupplemented by opinion, leaves no residue distinguishing the deliberators to account for the specific selection of the dissenter. Jurors may discover that dissenters make the best devil's advocates, but why they are better remains unexplained. The belief/opinion theory accounts for selection of the dissenter: in deliberation, he defends his opinion, distinct from his belief. 

Next in series: Why do we confuse belief and opinion?: A construal level theory analysis.

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Joshua Tree, California 92252-2141, United States
SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.