David Hume’s challenge to the philosophy of science – the problem of induction – has never properly been addressed. In essence, it argues that it is impossible to predict the future, because no matter how many experiments we can do, or examples we can take from history, we can never be sure that something we didn’t know might happen – like the emergence of a black swan, first discovered (or so named) in Australia in 1790, and prior to which – in Europe at least – it was presumed that all mature swans were white. We can deduce that if A = B and B = C then A = C. But just because every car we have ever observed has four wheels it does not mean that the next car will have four wheels. It may have only three. Instead of throwing our arms up and saying that none of modern rationalism can really make sense any more, a combination of pragmatism, wilful ignorance and theology have conspired to sweep the inconvenient position under the carpet.

This has profound consequences for the basis of modern thought and epistemology. In particular, it has particular consequences for history and the philosophy of history, and the philosophy of time. It also has a profound and immediately practical bearing on the criminal justice system, and how we attribute blame.

Timelines

Beginning first with the philosophy of time, we can turn to Henri Bergson’s work from the beginning of the twentieth century. We need to consider the idea of present, as the intersection or coming together of the future and the past. In a sense, the present is so infinitely small as to not exist – there is only future, and past. When we consider history, we compartmentalise or categorise events, peoples and institutions and structure a narrative around them. We speak of the Israelite flight from Egypt; the Second World War as a series of interconnected wars between 1939 and 1945; and US slavery as an institution that persisted until emancipation in 1863, and the US Civil War. Yet history is made every second; my typing, breathing, my very existence is each historical in that sense. It may not be important for the future narrative of whatever flow I find myself connected to – that of Ireland, or Europe, or of technology, or sociology, or the creative arts – but it is in some sense historic. These are facts; they happened in the past; I can write them down and record them for posterity.

Historical Narrative

More importantly, however, journalists, writers and artists create the narratives that will ‘become’ history. They construct narratives around events, institutions and peoples, that suit current power dynamics and demands. Certain elements are included and embellished (the glorious leader ‘telling it like it is’, showing ‘strength and defiance’, being leaderly) and omitting unimportant facts (the glorious leader’s morning eblutions); or those facts that, while important, don’t suit the narrative, such as the glorious leader’s countless affairs, minor cocaine habit, and the time he forgot the name of the Russian President. Diarmuid McCullogh in his History of Christianity records for example contemporary stories from the local narratives at Lourdes around the time of the apparitions in 1858, that have subsequently been omitted from the history:

Our Lady was not above giving salutary frights to local sceptics – such as the state officials who unsympathetically interrogated Bernadette, and then found themselves troubled by poltergeist-like phenomena and specifically directed storms, or the drunkard who had defecated in the Grotto and was then terrified by a night of acute diarrhoea. These two aspects of the events of 1858, zestfully narrated by locals at the time, have subsequently been edited out of the shrine’s official narratives; Our Lady of Lourdes has become a much better-behaved Virgin.

MacCulloch, Diarmaid, A History of Christianity: The First Three Thousand Years, Ch. 22

Over time, narratives combine – the good and the bad – and partisans cede ground to ‘academics’, whose task it is to synthesise the narratives and adjudicate truth. I’ve written on this site about the victory of Pyrrhus, which was largely described by Roman writers rather than Greeks, and therefore favoured Roman glory: while it was unavoidable to record that the Romans had lost, they could still take down the other guy for posterity – and how! It is often said that the victors write the history – witness the relative silence on the Allied carpet bombing of Dresden once the Second World War had been won – but academics try and find balance. History is littered with such post-hoc constructions.

Considering then the idea of predicting the future, we are constrained by narratives from the past. The creation of history – our actions in the present moment – are fraught with irrelevancies that are often vitally important to us. Politicians for example talk about creating their legacies, as if in some sense they control how they will be remembered. Yet it is the historians of the future that will document such a record, and they will document it in order that their politics are best served. The narrative at Lourdes is remembered today as ‘a much better-behaved Virgin’, as MacCulloch writes, not because her actions were different, but because the tourist / pilgrimage / theological narrative is better served by omitting what might be termed trivia.

Furthermore, the contemporary construction of history blurs as we delve further into the past. The records of Margaret Thatcher and Ronald Reagan are impeccably preserved and pored over by scholars who write endless books documenting individual meetings and events, let alone their lives; yet when we consider Plato and Aristotle (to say nothing for Socrates!) we barely know what year they were born. So history’s edges are blunted as we hurtle into the future, and more and more details are lost.

Ancient History

Given the messiness of the present, and the necessary post-facto curation that happens in the construction of history, its pruning of perceived irrelevancies ever more severe as time marches on, how can we persist with declarative causal statements? Socrates refused to recant and was sentenced to death and drank the hemlock and died. Those facts may be correct. But what details are masked by the simplicity of the statement, the lack of colour? Did Socrates simply refuse, or was there more negotiation, other than that recorded in Plato and Xenophon? Was Socrates really upset about it, and just putting on a brave face? Was he in truth ready to end it all anyway, because his wife was having an affair with a neighbour? Presumably no post-mortem was performed – he could have had a heart attack just at the moment he put the hemlock to his lips, and that may in fact have been what killed him. It was a very stressful situation after all. How can we know? Does it actually matter, given he had (apparently) made the choice to drink the hemlock even if he didn’t actually manage it! The reality is that we can’t know, but history, and posterity, chooses to remember the narrative as we do because it serves a philosophical narrative that can enlighten and provoke intellectual debate. That is sufficient. If there is some dignity or honour due to the person of Socrates, it has long since lapsed, and his narrative – for now, at least – is firmly recorded. The statement – that Socrates did as he did – is now fact; it is accepted; it is history.

It is one thing to declare that something that happened two-and-a-half thousand years ago may not have happened in the way we remember it. It is quite another to look at something that happened last week, or two minutes ago, and have similar doubts. There are three domains of interest here – mistake, deception and contingency. If we return to the Humean problem, and place that frame upon events, things become very murky very quickly.

Let’s take an example of violence: Mary shoots John dead in front of the neighbours at a barbeque on Tuesday last. Following the shooting, the cops are called, and Mary is arrested based on the statements of the other neighbours – multiple variations of ‘she walked out of the house, pulled out a gun, and shot him.’ Let us consider the three domains of interest, and alternative scenarios.

Mistake

It is possible that Mary pulled a gun out, but then John was killed by a sniper on the roof before Mary had a chance to fire. It would have looked to everyone as if Mary had shot John, but that would have been a mistaken view. She may have intended to shoot him; she may indeed have actually have shot him; but the sniper shot him first, and therefore was the one who had actually murdered John. Furthermore, dismissing the sniper theory, she may not have intended to shoot him, but instead to play a trick and frighten him, but her finger slipped in the act of pulling out the gun. The observers were each mistaken in saying that Mary had murdered John. They may have been technically correct in saying that she had shot John, or they may not.

Deception

Let’s say John convinces Mary to play a joke on the neighbours by pretending to have her shoot him, setting up a murder mystery game for them all to play. There are blanks in the gun, John assures her. Mary walks out of the house, and shoots John, but a nefarious neighbour heard about the plan and placed real bullets in the gun. Or, John having been suicidal but not sufficiently brave to do it himself, constructs this ruse to have Mary unwittingly shoot him. In each case, Mary has been deceived. She did not know that by pulling the trigger she would kill John.

Contingency

Mary shoots John, but only after years of domestic abuse. It is in truth an act of self-defense. He had just threatened further violence because she had burned the steaks at the Barbeque. Or, Mary’s family has been kidnapped by a gang and she has been told that unless she kills John, her family will all be killed. Or, Mary has had a long history of psychosis, for which she is on medication, but a bad actor (possibly John?) has replaced her medication with a placebo.

There are further considerations in considering the problem of causation, in the context of crime and punishment. There is a straightforward law that is generally accepted in all societies that if you murder someone, you must face punishment. Let us assume for now that none of the fringe cases apply. Let us change the scenario and make it even more straightforward – Mary does not know John, but just walks up to him on the street, and shoots him dead because she felt like it. She was sober, deliberate and not in danger. She just decided to shoot him. She did not consider the social or extended consequences, it was merely a decision she took ‘on the spur of the moment’.

In our criminal justice system, we connect Mary’s actions with the consequence for John. Mary drew a gun, pulled the trigger, shot John in the head, and John died. Can we make it any more straightforward? An open-shut case, as the cops say in all the best TV shows. In legal terms, there is a clear mens rea – the guilty mind – and a similarly clear actus reus – the guilty act. Case closed.

Object Issues

But aside from the subject issues discussed above (issues of mistake, deception and causation relating to Mary’s action) there are object issues. John may have been particularly sensitive to the angle at which the bullet enters the head, that others would not have had. Another ‘target’ would have had brain damage, but not have been killed. John may have been a young, fit, twenty-something man, or a hundred-year-old cancer ridden senior citizen. He may have been suicidal and decided not to attempt to evade Mary when he saw her pulling out the gun.

Combining the two, it can become extremely difficult to construct an event that bears third party judgement. Can we really know, at any level, what category an event falls into? How can we then assign against it a judgement and a sentence appropriate to the event, or to the crime? When we consider sentencing, we increasingly consider victim impact, punitive sanction, and deterrent effect in favour of rehabilitation, which was originally the principle upon which the common law criminal justice system was established. Our judgements more frequently say more about our society, its elites and its ideas than they do about so-called criminals.

Slavoj Zizek speaks in his 2014 book Event: A Philosophical Journey Through A Concept of these issues and considers how we concentrate our current ontology, our view of the world, on this idea. Perhaps we should consider this more if we seek to improve our lot when it comes to crime and punishment.