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10.06.2022 at 07:44 pm
Cuttings

Teach Thy Tongue to Say: 'I Do Not Know'

Judgments as opinions, and wisdom upon the uncertainty of opinions.

... Teach thy tongue to say 'I do not know', and thou shalt progress.

- Talmud (Tractate Berachot 4a)

The public often treats legal decisions as factual declarations of 'truth'.

The problem: they're not.

Contrary to popular opinion, legal decisions do not pronounce truth. Legal decisions are merely estimations as to what had happened. They are opinions of what a fact may be, or how a law should be interpreted, or what actually happened.

No matter how assuredly a judge believes in something, or how couched in law/evidence his statement may be, he can only issue an opinion.

And what should come with opinions? Uncertainty.

Uncertainty is desirable

It is de rigeur in other disciplines to profess uncertainty when making statements. Other fields, such as science, even take to statistical tools to express uncertainty - e.g. confidence intervals, margins of error, etc.

We lawyers and judges, as men of (supposedly learned) opinion, also have tools. But our measures are less empirical; we can only weigh certainty in the language of plausibility: 'on a balance of probabilities', 'beyond a shadow of a doubt', and so on.

So why do so few judgments fail to consistently cite those measures; why are so many of our legal decisions seemingly so cocksure?

...I do not know.

I make one guess, at least: the word 'judgment'. It's a rather loaded word. I find it more honest how some jurisdictions use the word 'opinion' for their legal decisions - which gives proper treatment as to what they truly are.

Uncertainty - a part of wisdom

Personally, I see it as a sign of wisdom when a judge shows doubt, or makes room for the possibility that he may be wrong or not know enough. Professing ignorance does not make one ignorant; it makes us human.

And judges/lawyers should not be embarrassed to hold an opinion with reservations for uncertainty. Scientists do it all the time.

It is more humble to admit that one doesn't know, than to opine on something and mislead others by the weight of your authority.


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