I think something like an adversarial system with a jury of peers would still be a good choice with perfect Bayesian agents. This structure exists largely to avoid conflicts of interest, not merely to compensate for human irrationality. Unless you are assuming that perfect Bayesian agents would not have conflicts of interest (and I don’t see any reason to suppose that) then you would still want to maintain those aspects of the legal system that are designed to avoid such conflicts.
There are two common classes of reasons why evidence may be inadmissible or excludable in a trial. One of these classes should probably be admissible with a perfect Bayesian jury, the other not.
Evidence that is inadmissible because it would prejudice or mislead the jury (like information about prior convictions) would probably be fine with a jury of perfect Bayesians but evidence that is thrown out because it was obtained in some way that society deems unacceptable might still be rejected because of broader concerns about creating inappropriate incentives for law enforcement.
This raises the question of just how perfect your Bayesians are however. If they are very good at correctly weighing relevant evidence but still have computational limits these concerns would probably apply. If they are some kind of idealized agents with infinite computational capacity then you might draw different conclusions but as this case is impossible it is not very interesting in my opinion.
So obviously if everyone was a perfect Bayesian agent a jury would be fine. I actually think imagining how things would work with perfect Bayesians is boring. I was thinking more realistically, as in, how would I design a new justice system tomorrow (or in 5 years when we’re really good at this) to minimize irrationality as much as possible. No perfect Bayesians just smart people you can teach things to.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job. Also, the adversarial system strikes me as bias inducing. The wealthy get better representation. I think even if we want to keep adversaries in place we should at least give whoever is making the decision more investigative and active in their role. Instead of just listening to arguments they should be asking questions and thinking things through in real time. More like the Supreme Court hears cases than the way a regular jury does. Listening to two pieces of propaganda and then deciding doesn’t seem like the ideal way of settling questions of fact. It might be a decent starting point, though.
Making that biasing evidence admissible is definitely a good call assuming properly trained judges.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job.
I still think you are missing a primary reason for having a jury system. The role of the judge in a jury system is to be an expert on the law and to explain to juries how it applies to the current case, to ensure the trial is conducted under the rules of the system and to pass sentencing.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s. Historically jury nullification was seen as an important check on unreasonable or unpopular laws.
Adversarial systems have similar advantages in terms of reducing the potential for conflicts of interest to unduly influence the outcome of a trial. The alternative of an inquisitorial system again runs the risk of biasing the court in favour of the state or establishment and against the private citizen.
The history of common law systems reveals an ongoing process attempting to balance the rights and interests of the state, private citizens, the defendant and the prosecution in a world where bias and conflict of interest are recognized to exist. The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
I’m quite familiar with these arguments. I’m not sure why you’d suppose I wasn’t.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s.
First, my claim is that determining matters of fact also requires a kind of expertise. Second, I’m generally skeptical about the extent to which an adversarial system protects judges from conflicts of interests, bribes and intimidation more than an inquisitorial system. Even in adversarial systems judges exercise a lot of control and are bribed and intimidated on a regular basis. Lots of liberal democracies have inquisitorial systems and aren’t especially notorious for coerced or biased judges. Is there evidence that civil systems lead to more bribery? Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges. Fourth, what conflicts of interest aren’t avoidable with oversight in an inquistorial system that are avoidable in a adversarial system?
I don’t think a fair, rational system should include anything like jury nullification.
The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
“The results are not perfect” considerably understates the problems, methinks.
Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges.
What specific checks and balances do you have in mind? The current system can let serious forensic fraud and gross judicial misconduct continue for a very long time.
Even if you have good Bayeianisms, you might still want to throw out prejudicial information that isn’t likely to be relevant. It is safer that way and doesn’t rely on making as narrow an estimate about how good people are at being rational.
Alternatively, it might make sense to do away with juries altogether and simply have judges decide everything. However, there’s some evidence that judges are not much better than juries at deciding cases. So I’m not sure that would help much.
I think something like an adversarial system with a jury of peers would still be a good choice with perfect Bayesian agents. This structure exists largely to avoid conflicts of interest, not merely to compensate for human irrationality. Unless you are assuming that perfect Bayesian agents would not have conflicts of interest (and I don’t see any reason to suppose that) then you would still want to maintain those aspects of the legal system that are designed to avoid such conflicts.
There are two common classes of reasons why evidence may be inadmissible or excludable in a trial. One of these classes should probably be admissible with a perfect Bayesian jury, the other not.
Evidence that is inadmissible because it would prejudice or mislead the jury (like information about prior convictions) would probably be fine with a jury of perfect Bayesians but evidence that is thrown out because it was obtained in some way that society deems unacceptable might still be rejected because of broader concerns about creating inappropriate incentives for law enforcement.
This raises the question of just how perfect your Bayesians are however. If they are very good at correctly weighing relevant evidence but still have computational limits these concerns would probably apply. If they are some kind of idealized agents with infinite computational capacity then you might draw different conclusions but as this case is impossible it is not very interesting in my opinion.
So obviously if everyone was a perfect Bayesian agent a jury would be fine. I actually think imagining how things would work with perfect Bayesians is boring. I was thinking more realistically, as in, how would I design a new justice system tomorrow (or in 5 years when we’re really good at this) to minimize irrationality as much as possible. No perfect Bayesians just smart people you can teach things to.
The advantage of judges over juries is that we could teach judges to be rationalists as part of their job. Also, the adversarial system strikes me as bias inducing. The wealthy get better representation. I think even if we want to keep adversaries in place we should at least give whoever is making the decision more investigative and active in their role. Instead of just listening to arguments they should be asking questions and thinking things through in real time. More like the Supreme Court hears cases than the way a regular jury does. Listening to two pieces of propaganda and then deciding doesn’t seem like the ideal way of settling questions of fact. It might be a decent starting point, though.
Making that biasing evidence admissible is definitely a good call assuming properly trained judges.
I still think you are missing a primary reason for having a jury system. The role of the judge in a jury system is to be an expert on the law and to explain to juries how it applies to the current case, to ensure the trial is conducted under the rules of the system and to pass sentencing.
The decision of guilt or innocence is delegated to the jury in an attempt to avoid conflicts of interest. Because of the requirement for the judge to be an expert on the law it must be a long term position and so the judge would be an obvious target for bribery or intimidation and will be prone to conflicts of interest when deciding verdicts where the state’s interests are opposed to a private citizen’s. Historically jury nullification was seen as an important check on unreasonable or unpopular laws.
Adversarial systems have similar advantages in terms of reducing the potential for conflicts of interest to unduly influence the outcome of a trial. The alternative of an inquisitorial system again runs the risk of biasing the court in favour of the state or establishment and against the private citizen.
The history of common law systems reveals an ongoing process attempting to balance the rights and interests of the state, private citizens, the defendant and the prosecution in a world where bias and conflict of interest are recognized to exist. The results are not perfect but understanding why such systems developed as they did is an essential prerequisite to any consideration of possible improvements.
I’m quite familiar with these arguments. I’m not sure why you’d suppose I wasn’t.
First, my claim is that determining matters of fact also requires a kind of expertise. Second, I’m generally skeptical about the extent to which an adversarial system protects judges from conflicts of interests, bribes and intimidation more than an inquisitorial system. Even in adversarial systems judges exercise a lot of control and are bribed and intimidated on a regular basis. Lots of liberal democracies have inquisitorial systems and aren’t especially notorious for coerced or biased judges. Is there evidence that civil systems lead to more bribery? Third, this fear of judges siding with “the state” against private citizens can be (and is) remedied by checks and balances elsewhere (like the kind all liberal societies already have) and mechanisms to allow the public to fire judges. Fourth, what conflicts of interest aren’t avoidable with oversight in an inquistorial system that are avoidable in a adversarial system?
I don’t think a fair, rational system should include anything like jury nullification.
“The results are not perfect” considerably understates the problems, methinks.
What specific checks and balances do you have in mind? The current system can let serious forensic fraud and gross judicial misconduct continue for a very long time.
Even if you have good Bayeianisms, you might still want to throw out prejudicial information that isn’t likely to be relevant. It is safer that way and doesn’t rely on making as narrow an estimate about how good people are at being rational.
Alternatively, it might make sense to do away with juries altogether and simply have judges decide everything. However, there’s some evidence that judges are not much better than juries at deciding cases. So I’m not sure that would help much.