Yuri
Tarnopolsky
ESSAYS Essay 38. On Football soccer. justice. truth. competition. jury
trial. jury consultant. 2002 FIFA World Cup. ethics.
ordering chaos. evolution. social critics. Use Firefox browser or see essays-complete.pdf |
Unlike fate
and soul, the works of justice are accessible to direct
observation. We can accept the fate and prosper without
the soul, but life without justice could be
uncomfortable. Is justice yet another phantom from a
bygone era? I am
indifferent to any sport except the European football.
It is called soccer only in the USA, football everywhere
else, and I see no disrespect in using the global name.
parlance. My interest
in football is by no means passionate. I watch only the
World Cup and only if I am in the mood. I do not even
remember whether I watched the 1998 Cup, but I followed
most of the 2002 World Cup. I am
attracted to football as an allegory of life. Like life
itself, the game is based on cooperation and
competition, individual abilities and teamwork,
intelligence and physical strength, making mistakes,
breaking the rules and being punished for that. The
players can be happy and miserable, aggressive and
gallant, determined and broken. The action
in football, as well as in real life, is composite and
punctuated. It has a beginning, a sequence of episodes
with their own beginnings and ends, and the final end.
As the night sleep, vacation, or disastrous accident
interrupt our life, so referee breaks the game with his
whistle, until it is all over. There is
something old-fashioned in football. It looks
anachronistically human on the American TV. The game of
the entire world is practically continuous and can be
stopped only for a short time. It resists the
scorched-earth commercialization. The players do not
rely on high tech gear to protect them from powerful
collisions, falls, and hits. Football can be played
naked and barefoot. It contains elements of both ballet
and military strategy and employs some fine technique.
Both the male dancers and football players often have
exceptionally strong legs. The difference is that the
ballet is learned by rote and football is always
improvised. A good game is very fast and as densely
packed with suspense as a good thriller. A low-level
football, however, can be deadly boring. The purpose
of my Essay is not to extol football over any other
sports game. A layman who
came from the dark (there was no jury trial in the
Soviet Russia), I found the professional sport and
system of justice some of the least engaging aspects of
the American life. They both have roots in the all-human
mythology, where the hero fights face-to-face with a
villain, but the sweet American public grants reverence
to both. The suspense
of the trial is the same as in a competition between two
teams. It ends either in a victory of one of them or in
a draw (hung jury). The similarity between trial and
game is enforced by the presence of the judge on the
bench and referee in the football field. The goal of the
trial parties is to win each of the twelve jurors who,
unlike the leather ball and the wooden football goal,
are as human as the rest of participants, and, probably,
even more. In a
courtroom, the outcome of a trial can be a matter of
life and death for the defendant. In the field, however
dramatic the game, it is about running fast, chasing the
ball, and scoring goals. The football players—and a
national pride—can suffer only traumas and humiliation.
While life is life, football is a professional
performance. Display of joy is welcome but anger and
malice are off good manners. Both
contests start with the initial state of uncertainty.
The outcome is not known in advance, although the
probability of each outcome can be approximately
evaluated beforehand. The more certainty, the less
interest in the result, the more sensational the
reversal of fortune. From the
point of view of thermodynamics, the contestants want to
resolve the uncertainty, each party in a different way.
They want to decrease chaos and turn it into a firm
order, which requires thermodynamic work. Thus, the
freezer spends electrical energy to decrease the chaos
of molecular movement in liquid water and turn it into
the much more ordered ice. NOTE: While chaos is
always the same, given the degree of it, the same degree
of order always corresponds to at least two (and up to a
very large number) different particular orders. Order
means one of several or many states of the system. Chaos
means that we either do not know or are not interested
in the actual state, or it changes too fast and we have
a superposition of many states.
The
court
judge or the field referee could just declare the verdict
before the trial or the final score before the game, but
this is not how the system is designed. The law of the
land requires the system to come to the final state on its
own, following the ancient idea of justice as the opposite
of tyranny and whim. The idea of justice, as the idea of
truth in science, implies that there is a certain actual
state of things that can be discovered. I suspect
that the ultimate reason why the trial by peers came to
being. It was a strong gut feeling, long before any
mathematics, that if any single person can be unfair
even with the probability 0.5 (50%), the probability
that twelve such people are unfair is very small (0.5
exp12 = 0.000244). The trial by peers, therefore,
reflects a significant pessimism about human nature,
which the practice of justice seems to confirm. Yet the
probability that the jury is faire is exactly 0.000244,
too. The institution of jury believes in the inherent
fairness of people. But there is no jury to judge the
notion of fairness.
It is what you believe is fair. The just
(fair) verdict or the score must reflect the truth. In
my eyes, this belief puts the concept of fairness on a
shaky ground because the truth is a matter of personal
belief, unless there are general criteria of testing it.
If we regard the trial and the football match as
experiments that reveal the truth, the criteria are not
met because the experiments cannot be repeated
independently. If the
purpose of the trial is to find the truth, it may not be
found. Innocent people get sentenced to death and
murderers go free. Nevertheless, in many cases,
probably, most of them, the evidence is so convincing
that the apparently impossible task of a unanimous stand
of twelve independent people on a single issue can be
achieved. The troubling problem for me is that the
verdict has no outside proof of its justness. It is
dramatically different from the scientific view that a
truth is what can be confirmed independently by other
scientists, similarly equipped, and cannot be refuted by
any of them. The trial is
not about the truth: it is about the verdict. As it
often happens, rigorous logic is not always practical.
In fact, probably, most verdicts
reflect the truth. It must be terrifying not to have an
independent test. Riding the vehicle of justice could be
as risky as driving, flying, and sailing, or even more.
This is why doctors have malpractice insurance. Is football
fair? There are plenty examples of disputed referee
decisions or even the very facts of the game. The 2002
World Cup had some incidents, too. The football is not
about the truth, either. It is about the final score. The
monumental difference is that the crime is usually
hidden from the public when it happens, while the
football is all on TV with replays and close-ups. The system
of criminal justice is not widely trusted in America. In
The Sourcebook
of Criminal Justice Statistics, which "brings
together data from more than 100 sources about all
aspects of criminal justice in the United States," I
found the response to the question "How effective is the
American criminal justice system?" In particular, the
answers concerning reaching just outcomes at criminal
trials distributed in 2000 the following way: Very effective
13% In 2001 only
50% had a great deal of confidence in the US Supreme
Court, and 31% had some. I believe
that this kind of negativism and pessimism has something
to do with the very nature of justice. Different people
have different understanding of the truth and justice,
as well as of the function of the jury and the entire
complicated system of the law formulated in an
intimidating language and based on precedents and
statutes that can go back for centuries. EXAMPLE of an old view widely quoted on
the Web: For
more than six hundred years—that is, since Magna Carta,
in 1215—there has been no clearer principle of English
or American constitutional law, than that, in criminal
cases, it is not only the right and duty of juries to
judge what are the facts, what is the law, and what was
the moral intent of the accused; but that it is also
their right, and their primary and paramount duty, to
judge the justice of the law, and to hold all laws
invalid, that are, in their opinion, unjust or
oppressive, and all persons guiltless in violating, or
resisting the execution of, such law. Besides,
the
general mistrust of any establishment is typical for an
individualistic and competitive society. Another reason
for the skepticism could be that only the high profile
cases can be seen on TV, and a high profile case is
something very much like a high class football. Both big
court case and high-class football are loaded with
uncertainty and energy in the form of money, and
concentrated energy can produce various effects, including
the unintended ones. When a lot of money is involved, all
the probabilities are skewed. This is the major principle
of social thermodynamics, as I see it. With so many
reasons, there must be a single and simple one (Essay
28, On Simple Reasons). Here it is. When the
society is relatively homogenous and its members deviate
little from the average, views on any subject, whether
positive or negative, are mostly in agreement with each
other. When a society is fragmented, balkanized, or
antagonized (see Essay 11, On the Rocks), a
consensus is hardly possible. For example, in a society
of cops and robbers the view of justice would reflect
the ratio of both. Regarding political issues, the same
would happen in a society split into Republicans and
Democrats. There are
games intermediate between football and trial: the open
contest judged by a jury, for example, in gymnastics,
ballroom dances, figure skating, and beauty pageants. It
lacks the single referee and the contestants are not
teams but individuals. At least in Olympic figure skating,
fraud has been
recorded, and I doubt that beauty pageants have any
objective value. They have nothing to do with the
categories of true and false. They have something in
common with the ancient justice based on torture or
throwing the suspect into a river for the verdict of
God. The survivor of the trial by water and fire was
presumed innocent. Football is
not about the truth, either. Like any other contest, its
only result is the final score. Nevertheless, the degree
of justice or fairness may vary. In the whodunit
stories, where the mystery is solved on the last page,
the reader is engaged in the search for the truth
because the author is its keeper. In the real court and
field dramas, the verdict has no personal guarantor
against any reasonable or unreasonable doubt. In an
oppressive societies, like the China and Soviet and
Putin’s Russia, political trials always have the author.
It seems
that the popularity of sports in America may be rooted
in the wide spread belief that the competition in sports
is just. I do not know what justice is, although I
tinkered with justice in Essay 30, Tinkering with
Justice. Thinking
about justice, I tend to believe that justice, whatever
it is, can never be perfect by its very nature. Justice
is the least socially stressful form of injustice.
I am
intrigued by the difference in the way chaos is ordered
in the courts and on the fields. In modern society the
cost of order is energy in the form of money. In the totalitarian societies social
chaos is ordered by mere physical force. The sports came
from deciding a dispute neither by compromise, nor by
tossing the coin, but by a fight. A very small
part of the football money goes directly to create the
supply of ATP to the brain and muscles during the game.
Most of it goes to decrease the probability of loss. One
of the reasons for the high cost of the high-class team
is that the football game is very hot. The number of
events happening per unit of time and, especially, a
high degree of chaos requires a lot of training to build
order in the "society of mind," as Marvin Minsky
described the general architecture of our intelligence.
It is done by training and selecting and importing best
coaches, strategies, and players. The larger
the base of selection, the more probable a lucky
selection. Small random
systems can have a large degree of uncertainty. A tossed
coin, the smallest possible random system, has the
maximal possible uncertainty of outcome until it hits
the ground. Any highly ordered small system, for
example, good clockwork, has a very low uncertainty.
From a large enough real life system we can expect a
statistically or sometimes analytically predictable
behavior. Some of its states and changes from one state
to another are impossible, others have a very low
probability, and others are almost certain to happen.
This is why we cannot manage the behavior of molecules
in a volume of gas, unless we freeze them all, but can
partially manage human behavior, individual as well as
collective. The way to
success, therefore, requires managing a dynamic
(changing) system of a certain size. Ambitious football
nations go all around the world in search for best
players and strategies. The stars are well paid. The
FIFA World Cup is a large undertaking with a lot of
teams, games, and assisting personal. In a large system,
we can expect to get close to a kind of a natural truth:
the roster of three top winners. To get to the truth
even closer, we would force all the teams fight the
entire year with each other, which is absurd. The
Football Cup is an acceptable approximation to a
"truth." I believe a mathematician could
evaluate the fairness of this approximation. The
competition, in a sense, is an experiment, like the
separation of a shaken salad dressing into oil and
vinegar, which allows for measuring their ratio. Turning to
the trial by jury, where is the large dynamic system
that would provide a basis for approximating the truth?
Here we are
facing a much larger and more general question about
life-like systems (life, society, Things, ideas). Why do
they grow? Survival
means managing chaos: decreasing the probability of
failure and increasing the probability of success.
Everything in the modern society is growing: government,
bureaucracy, companies, sports, entertainment, medical
care, and social problems? The life-like system
grows because of the mesoderm principle (Essay
15, On menage a trois in the Stone Age): if two
parts of a large evolving system interact, an
intermediate part develops between them. Its function is
to manage the interaction, i.e., to decrease chaos on
the interface and stabilize the system. The larger
the system, the more chaos arises from the interaction
of its components, the more new parts appear to mitigate
chaos, the larger the system becomes. It all makes sense
because the area of chaos becomes local, small, and less
life-critical in a larger system. The growth
can go on only if there is a source of energy to feed
it. This is why authoritarian societies prevailed in the
early history: they did not burn the mineral fuel to
grow food, as we do. The authoritarian hierarchy
decreases its chaos by its very structure. It works like
an air conditioner: cooling the room, heating the
street. Naturally, the external temperature throughout
history was high and war and pillage were the everyday
reality. It seems to me that the American foreign policy
for at least the last fifty years has been not to
eliminate wars but to keep them local. This is a
separate subject, however. Bureaucracy
and mediators of all kinds grow and cool down the
system, reaching the size when chaos in the system is
strictly local (no systemic crises) and it does not put
the entire system in danger. In due time, they develop
too much chaos themselves and require a new department
to manage it. From the system where most people
manufactured various Things, a hot dynamic capitalist
type system moves, as some observers unrealistically
extrapolated it, toward the state when most people just
process information. The social organism differentiates
into organs and tissues, and this may be an answer to a
large segment of modern social criticism predicting the
loss of work, soul, order, values, culture, and
democracy, in other words, the Western society as we
knew it. We can as much indict evolution for the change,
as the winter for the snow. We do not know what is going
to happen, but we know that no growth lasts forever and
we know basic thermodynamic alternatives in terms of
temperature, energy, and entropy. Back
to the courtroom, the largest system
with high uncertainty is the jury. It is large not
because of the large size of the jury, which is
moderate, but because of the complexity of each human
member. To get a consensus from twelve human beings,
often balkanized, seems an overwhelming task. That
everybody is presumed innocent until proven guilty is a
part of mythology. The defendant is neither innocent,
nor guilty: his position is uncertain. Moreover, the
degree of this uncertainty (i.e., entropy) is usually
rather low: there are facts and conclusions that have
already justified the trial. The court game has been
planned in a series of thought experiments. The strategy
of the prosecution has been developed. What can the
defendant's lawyer do to work against a high probability
of defeat? The mesoderm
that has appeared between the lawyer and the jury during
the last two decades is the institution of jury
consultants. They try to decrease the chaos of the jury
thinking by studying the behavior of jurors and
recommending their selection before they take their sits
in the box. Here are
some excerpts illustrating the work of the jury consultants.
1. The
jury consultant can be a very important member of any
defense/prosecution team. This psychologist uses
numerous past studies of juror behavior in order to
maximize the probability of a juror swaying
towards his teams side when it comes time to decide the
defendants fate. These consultants can be stunningly
accurate and could make or break the trial. A particular
example of a selection process involves the defendant's
occupation--many jury consultants will immediately
protest any teachers that are on the jury. It has been
found that such members tend to be more judgmental
and are likely to vote for guilty. Secondly, often blue
collar workers are removed when possible. Its seems that
these members of society tend to see things more
in black and white with very little gray allowed (i.e.,
alternative explanations are rarely accepted).
Jury
consultants may also use a number of questions in order
to evaluate a jury members personality
characteristics. They will often (if working for the
defense) try to eliminate anyone they define as
having an authoritarian personality. Again these
individuals are very judgmental and are very unlikely to
sway from there stances. They also hold a large
influence over jury members. A new personality
measure that is often considered is a person's level of
moral reasoning. This involves the level to
which a person's moral beliefs have developed.
For example, a high moral reasoning will go
beyond the law if it seems to be morally
unacceptable. They will also be less prejudiced
towards racial and socioeconomic differences (something
that is a major problem with today's courts).
Michael
Decaire,
September 12, 1999 2.
Moore
set up pretrial focus groups to determine what
characteristics Through
the
first focus group and mock trial, Moore learned that the "I
see myself as the interface between the attorney and the
jury or
Mary Morrissey, Counseling
Today, April 1998 Can Jury
Dynamics beat General Dynamics in the future? 3.
Tuesday, April 2, 2002— SPRINGFIELD—Prosecutors who
won convictions in the Kristen H. Gilbert murder
case spent $264,512 on experts, including $82,946
for a jury consultant. The
highest
paid expert was Jeffery Frederick, the jury consultant
who received
The defense of
Gilbert cost $1.6 million, including $532,930 for
experts and My intent here,
as everywhere in the Essays, is not to judge any system,
but to illuminate, often to my own amazement, the
process of its evolution. Whatever exists, came from
somewhere and will turn into something else. We can
understand the origin and the fate of things by focusing
on change, as well as on the stable patterns (I call
them "drawers" in Essay 32. The Split). The
change is on the surface of things and the patterns are
in our mind. We would never notice one without the
other. The Western
civilization, as some might believe, can be global
someday. I believe so, too, because it is a civilization
of man-made Things, and the Things have no borders,
culture, and historical memory, not yet. The essence of
the process is the unstoppable development of the
intermediaries in its organs and tissues. But the West
may look quite different “someday” and almost beyond
recognition. The
computers enormously amplify the ability of humans to
create and process information, and this is why the
previously narrow layer of symbolic analysts, as Robert
Reich renamed the white collars in his The Work of
Nations: Preparing
Ourselves for 21st Century Capitalism, (New York:
Alfred A. Knopf, 1991), exploded in
the last two decades. The modern social mesoderm
controls the natural chaos of the free society by
controlling the exchange of information. The problem
with the symbolic analysts is that the lion's share of
the information they handle is useless by its very
nature and is almost immediately lost. It is like the
thousands of acorns the oak tree produces: few can ever
put roots. Naturally, a food chain will inadvertently
develop, absorbing more and more humans, with less and
less opportunities to get to the higher tiers, more and
more gray shade in the formerly snow-white collars, and
more and more drones for a single Board queen. Will
Artificial Intelligence unseat the sinful humans in the
information business? Yes, when AI develops its own idea
of sin. The process
of the interface differentiation is by no means new. It
is a pattern as old as the merchant trade squeezed in
between the manufacturer and the consumer. It is even
older: as old as the alpha male who regulates relations
between the members of his pack. Whatever we may think
about the current course of events, to criticize it
means to criticize our own human nature, together with
the animal nature that gave birth to it, and even with
the lucky design of the Solar System that gave birth to
life on Earth. It does not
mean that such criticism as ridiculous. To act in a
senseless way, without any practical goal, and to go
against the tide means to have a soul. But why not
to judge? Because there is no justice. Instead, watching
the development of the criminal system, we can see the
evolution of the discovery of the truth. The
idea of approximating the truth displaces the idea of
justice. The new scientific and technological methods
can do it better and better, pushing out moral
categories. Of course, the industry—and therefore
business—of truth (scientists, specialists, journalists,
consultants, and experts) will further swell the
mesoderm, unless some new factors step in. The
substitution of facts and observable regularities of a
scientific character for moral and ethical categories
could be one of the most radical components of the
current transformation of the Western civilization. I
watch this process with historical fatalism: I will not
see the advanced stage of the transformation, and the
young people would not see anything different. Coming out
of the courtroom into the football field, we can feel an
important difference. Not only the football field, but
also the system itself is bigger. It allows for a
stunning wealth of
statistics. The FIFA World Cup
2002 analyzes the games in terms of 65 different
indicators (see APPENDIX 1) describing goalkeepers,
goal-scoring stars, individual and team attack, defense,
and disciplinary violations and punishments. Some of the
indicators are relatively large numbers. For example, it
was calculated that the finalists made over 2000 short
passes and around 800 long passes during the Cup. The four
finalists were Brazil, Germany, Turkey, and Korea.
Except defense and discipline, all four finalists were
pretty close, and Turkey and Korea were surprisingly so.
It should be noted that some analysts predicted a big
disappointment for the fans of Brazil and Germany. The team
positions in the order of a decreasing attacking ability
were: 1. Brazil The
positions in the order of decreasing defense were: 8. Germany The order of
decreasing disciplinary violations (yellow card) was: 1. Turkey I have an
impression that Brazil won the World Cup 2002 "because"
of the highly disciplined team behavior while Germany
was able to come second "because" of the high
thermodynamic temperature of the game, as the violations
testify. The statistics also shows that Brazil has a
higher number of stars, while Germany is good at
teamwork (long passes). My
impressions are by no means any approximation to the
truth. It is a hypothesis. It cannot be tested by the
statistics of subsequent World Cup Games because the
teams will be different in four years. Nevertheless,
analyzing a large number of results, one can develop the
best strategy or just explain the results post factum.
The size of the system in the World Cup is incomparably
smaller than that of society, but large enough to
explore it with the purpose of discovering some "truth."
The closer
the teams by their strength, skills, and style, the less
justice can be expected, however, because the chances
then come close to 50:50. Several times during the
games, in a draw, after the additional time had been
exhausted, the outcome was decided by striking penalties
until an advantage was achieved. At this medieval stage
of trial by fire, the previous game was completely
irrelevant. The court
system does not provide such statistics. It
demonstrates, however, in the same manner as football
does, a gradual outflow of moral categories from the
fabric of civilization. And that is one of my
major observations about how our civilization evolves.
We can see the vigorous evolution from Archimedes to Dean Kamen but a languid
crawl from Aristotle to John Rawls. This Essay
is about criminal justice, which has a competitive
aspect. The subject of justice is much larger and John
Rawls is, probably, a good introduction. Do we need
justice? As Philip Rieff prophetically suggested long
ago, in 1966, in his The Triumph of the Therapeutic:
Uses of Faith After Freud (Chicago: University of
Chicago Press, 1987 [1966]) all we need is to feel good
about ourselves. NOTE:
That was something social psychology found out about the
same time (theories of cognitive dissonance and balance)
and physicists knew since Archimedes about inanimate
systems. History, however, is propelled by people who
never feel good about something.
1. Tools
came to existence as extensions of human hands: they
took place as mediators between the hand, driven by the
mind, and the objects. 2.
Specialists and consultants developed from the objects
as mediators between the objects and the hand driven by
the mind. 3. They meet
and fuse in the middle in the process of the
commercialization, mechanization, and “desanimation” of
the mind, which evokes the reaction of numerous American
social critics (Jeremy Rifkin, Christopher Lasch,
Kenneth J. Gergen). Criticism,
justly or wrongly, presumes the existence of a truth of
a right-or-wrong type, serving as a yardstick for
justice. Evolution is
the greatest game we know—The World Struggle for
Existence Non-Stop Cup—second,
probably, only to the stock market. As in any
competition, however, there is no other truth in any
single act of evolution, other than the score, the
verdict, and the success. There is no justice, either:
victors are not judged. Every trial
is a one-time event and it does not provide any
statistics to judge whether any truth is found. Only
heavens know. Regarding justice, my personal conclusion
is that justice in a divided, stratified, and fragmented
society is contradiction in terms because the trial by
peers is rarely possible. Capitalist democracy and
justice for all are two bears in one den. Often,
however, people are just people and neither wolves nor
bears. APPENDIX
From The Road to the Law, by
Dudley Cammett Lunt, Whittlesey House, New York, 1932, pp.
177-178. Criminal law has ever been the
target of abusive comment. The complaints that it is
over technical, too slow, cumbersome and productive of a
wooden justice at best, are probably as old as the law
itself. Yet much of this criticism is misdirected
energy. It should never be forgotten that the criminal
law is a product of human ingenuity and as such is
possessed of the imperfections that characterize its
creators. Furthermore, in the regulation of any
anti-social activity a certain point is soon reached
where, in the hackneyed phrase, a line must be drawn.
The results are necessarily arbitrary. Finally, the
abuses which the sons of men delight to decry are due
more often than not, to the incapacity of those whose
function it is to enforce the law, rather than to some
vice inherent in the law itself. 2. "Survival
of the fittest," the mantra of Darwinism,
drew a lot of criticism for its circular, and therefore
meaningless, formula. It made many biologists feel
uncomfortable. In my opinion, the formula is flawed
because "survival" relates to the result of the game of
survival, and the "fittest" relates to a truth derived
from the "survival." Suppose the land is sinking and the
ocean is rising. The fish seems the fittest, regardless
of the outcome. In this example, however, the fish
is not fighting another fish, and there is no contest. 3. For
Aristotle, the philosopher is not a king, and the king
is not a philosopher (the philosopher imitates the best
life—God's—which is not political). The best life
is the philosophical life; the philosopher is more
noble and happier than the ruler. Truth is higher than
justice. 4.
The problems with the jury in modern society are well
known. There is a whole Jury
Bookshelf with such titles among others as: Judging the Jury, by Valerie P. Hans & Neil
Vidmar (1986), The
Runaway Jury by John Grisham
(1966) is a caustic satire of the entyre system. |
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