When I wrote in response to the recent letter from lawyers and former judges about Israel and Gaza, I highlight that one problem with it was that it encouraged a form of logical fallacy which is known as “appeal to authority”, or if you want to posh term “ad verecundiam.”
Fascinatingly, the problem with this form of fallacy was swiftly highlighted on X. I’d commented there that I believed the letter to be wrong, based on a misunderstanding of what the ICJ had said and so I believed that those judges and lawyers were wrong to sign it.
One interlocuter told me that I was arrogant to think that because I had read law that I knew more about the law than eminent judges and 600 top lawyers. Well, perhaps such a claim would be arrogant but of course, it wasn’t the claim I was making.
He them persisted to ask me if I thought that the former supreme court judges had got the law wrong. Or rather, he asserted “so you think they have got it wrong.” My response was that I believed the letter was wrong, I wasn’t going to comment on whether or not the ex-judges had got the law wrong. This is because there are a number of reasons as to how they could have ended up signing the letter without necessarily getting a legal interpretation wrong themselves. Namely, it is possible that they have not read one or all of the following themselves:
- The ICJ ruling
- The Genocide Convention
- The letter itself.
It is possible that they sympathised with the overall aims of the letter and so added their names, hoping and assuming that the drafters had done their homework. It is of course possible too that they had read those documents and reached a different conclusion to me -and to a number of lawyers who have publicly questioned the letter. However, we do not know. The thing is, lawyers don’t always read things. Remember how Ken Clarke, former Conservative Chancellor and himself an experienced lawyer claimed that he had never read the Maastricht Treaty. It will be interesting to see if anyone who signed the letter does come forward to say that they have read the various materials and argue a case for why the letter was correct.
So, I’m not claiming to know “The Law” better than judges and barristers. That would be a bizarre claim to make. The only way you can develop and maintain expertise in a legal field is to be engaged in it on a daily basis, either as an academic or practitioner. Much of what I learnt at University is now out of date, superseded by legislation and case law. Incidentally, it is worth noting that those retired judges will need to keep their hand in, somehow if they are not to lose their own expertise.
But really, you cannot talk about “knowing the law” in a general and abstract way. First, there are different specialities within law as there are with medicine, theology and other disciplines. So, first of all, you need to know that particular area of law. You may have in depth knowledge of property law or public law but that does not mean that you are an expert in international law.
Further, legal cases are determined in relation to concrete matters and specific events. So, what really matters is whether or not we know the specific law and the specific case in hand. Of course, someone who has practiced law for a long time and sat as a senior judge is likely to have more experience of reading and interpreting law, although even they may find that there is a difference between interpreting domestic case law and legislation versus interpreting international treaties, conventions and rulings. But in the end, what matters is whether or not you know the specific case. That’s why it boils down in this context to whether or not people have read the Convention on the punishment and prevention of Genocide and the ICJ interim ruling on South Africa v Israel.
It’s true outside of law too. A medic’s expertise is only of use if they have been trained in and have experience of that specific area of medicine but more than that, they need to read the case notes and examine the patient if their diagnosis is going to be valid. Similarly, it doesn’t matter whether or not you are considered a theological expert if you are not sat with the relevant Biblical texts in front of you and you are not carefully exegeting them.
And that’s the big problem with appeals to authority. They take us away from the hard evidence. Instead of checking out what has been said and done, we trust the word of someone else because they are “an expert”. That my friends is where we end up going badly wrong.
Faithroots 