If I see the man who ran over my dog shoot his wife, I may be happy to report him to the police – not out of respect for his wife, or the law, but because I have it in for him for what he did to my dog, and I want to see him suffer.  You might then say that I was moved to report the man out of what the law calls malice. 

Very few lawyers, even libel lawyers, know what that word means, but Oliver Wendell Holmes defined it in a way that meets our case – ‘when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself.’  A finding of malice may have consequences in both our civil law and criminal law, but in the example I have given above, what effect could or would such a finding have?  If I have in truth seen the man shoot his wife, and I report that to the police, what difference does it make if I am happy to report him because I hate him?  My state of mind is not relevant to the validity of the steps the police will take in acting on the information that I provide to them.

Attacking the prosecution may well therefore involve a fallacy if the attack is said to reflect on the validity of the charge that is the subject of the prosecution.  In Plato’s Apology, the author purports to set out the response or defence of Socrates to the charges brought against him before an Athenian jury.  The document is almost scandalously fallacious from start to finish.  Socrates says that he has become unpopular because he is a good philosopher.  You do not destroy the validity of a charge by impugning the motives of those who lay it.  A charge is not invalid because it is brought with malice (although there may be avenues of attack).  Nor for that matter must it fail just because the informant does not believe it.  Its validity is the question for the court, not the parties. So, when Socrates says that his accuser Meletus does not care about the substance of the charges, this, too, is irrelevant – at least in our procedure.  All these responses are spurious – they are in truth just common garden examples of the ad hominem fallacy.  The attack is on the man, and not the argument.

In order to make good a suggestion that a prosecution is infected by political motivation, you would need to show that not just the original charge, but the whole process of the criminal law, was politically bent against the accused, so that he or she was denied due process.  We now believe that to have been the case for the witch hunts at Salem or those conducted by Senator McCarthy.  It was clearly the case in the show trials conducted by Stalin and Hitler.  In a performance that was hilarious even by its standards, the IPA levelled that charge on Friday against the Royal Commission into Banks.

But the most outrageous instance of the fallacy comes with the response of Donald Trump to the investigation by the Special Counsel, Robert Mueller.  Trump does not just attack Mueller personally.  He intones parrot-like, as is his wont, that the inquiry is a witch hunt.  The irony is that although Trump would not have the faintest idea what a witch hunt is, that is precisely what he is engaging in against his own FBI and Department of Justice.  There are Reds under every bed, and the deep state is everywhere against him.  The conspiracy theory is nearly perfect – we have trouble seeing the evidence because the malefactors are so cunning and their arts and crimes are so dark.

That was just about the response that Don Quixote gave to Sancho Panza from time to time.

Be quiet, friend Sancho.  Such are the fortunes of war, which more than any other are subject to constant change.  What is more, when I come to think of it, I am sure this must be the work of that magician Frestón, the one who robbed me of my study and my books, and who has since changed those giants into windmills in order to deprive me of the glory of overcoming them, so great is the enmity that he bears me; but in the end, his evil arts shall not prevail against this trusty sword of mine.

Substitute the Deep State for Frestón, and there you have the Donald.  The Don was of course quite mad.  Trump may or may not be mad, but the faith of his supporters knows few bounds.  They were after all prepared to join in the mindless chant ‘Lock her up’ in response to the invitation from a bemedalled ourangatang who is now on his way to the slammer – unless he rats on his Commander in Chief.

What do I think of witch hunts?  I was very taken by the remark of an English judge way back in 1712.  His Lordship was moved to observe that there was no law gainst flying.

Bloopers

If I hear about culture, leadership or trust one more time I think I’m going to tear my hair out. The royal commission into financial misconduct has unleashed a barrage of calls for better, stronger and more resilient leadership and culture at the nation’s major financial institutions.

The new chief of the corporate regulator, James Shipton, gave a speech on Thursday emblematic of this trend, suggesting the ‘trust deficit’ in finance could be improved by ‘rebuilding culture from deep within’, more ‘sustained engagement’ and ‘active stewardship of assets by investors’, alongside ‘more intensive and dedicated supervision’.

‘It’s time for Australia’s financial services sector to remember its purpose’ he declared, in words unlikely to ruffle a feather anywhere.

Adam Creighton, The Australian, 19 May, 2018.

Bullshit is an occupational hazard for some positions – almost any at ASIC.