THE SOLUTION TO AN INJUSTICE IN TRIALS

 

      Over the course of twenty years, while practicing trial law, I wrote The Solution to an Injustice in Trials.  © 2019, ISBN 978-0-578-46220-2.  This is a 664 page law and logic book about a quite common form of injustice in jury trials, and, how to counter effectively this quite common injustice in jury trials.  The book's sub-title is A fallacy unmasked.  I call this fallacy argument ad hominem.  As outlined below on this web page, the book includes the most comprehensive and detailed description of the composition of argument ad hominem ever published.

 

     The book's dust jacket describes the book's content in more detail.  The dust jacket is shown below.   The book's price is $300 U.S.D., plus $25 for shipping, handling, and insurance (of $300 coverage) within the U.S.A., or, plus $110 for international shipping, handling, and insurance (of $300 coverage). The book can be purchased, subject to availability, by e-mailing your order to sinclair.banks@verizon.net.  Use "solution" as your e-mail's subject line, and in the e-mail state: 1) your physical mailing address, and, 2) that you have mailed a check, payable to Sinclair Banks, in the appropriate total sum, to the Law Office of Sinclair T. Banks, 208 Rock Street, Fall River, MA 02720, U.S.A..     

 

      To magnify text on the dust jacket, click on the "+" sign just above the image.  And to alter the area of the image magnified, slide the horizontal bar below the image (which bar only appears after magnification), and/or scroll up or down.       

        Considered below is the precise composition of argument ad hominem.  After that I describe a use of two definitions of this fallacy in a proposed law that would effectively counter this fallacy in trials, and, state the various benefits of this law.  After that I describe the overall significance of argument ad hominem, and then ask when, if ever, the proposed law will be created.

                                                         Precisely what is “argument ad hominem” ?

 

        Much has previously been written about argument ad hominem (also called argumentum ad hominem), but all of this writing is very limited, or wrong, or both, as viewed against an ad hominem fallacy I discovered.  This is shown in detail in the book, and sketched below.  What  I mean by an “ad hominem fallacy” is stated after the next paragraph.  The logical significance of the ad hominem fallacy I discovered is described in the next paragraph. 

 

        I searched for the composition of that ad hominem fallacy which is most broadly applicable to human ideas, because of: 1) the greater logical significance of this ad hominem fallacy compared to any narrower ad hominem fallacy (as any narrower ad hominem fallacy is included in the broadest ad hominem fallacy), and, 2) the greater logical significance of this ad hominem fallacy compared to any ad hominem form of argument that is not a fallacy but is merely generally illogical, not perfectly illogical.  Eventually I discovered the composition of that ad hominem fallacy which is most broadly applicable to human ideas (or so I believe).  This discovered fallacy happens to be very broadly applicable to human ideas.  The label "argument ad hominem" is pejorative in colloquial use, by suggesting that any argument that is an "argument ad hominem" is illogical.   This pejorative label, "argument ad hominem", I have re-applied to refer to that ad hominem fallacy which is most broadly applicable to human ideas.  To re-apply the label "argument ad hominem" to this fallacy is justified, because this broadest of all ad hominem fallacies has greater logical significance than the other candidates for the label "argument ad hominem", which other candidates are stated in the first sentence of this paragraph.          

 

       To explain what I mean by an “ad hominem fallacy”, first I must state the basic meaning of “argument” that I use.  I use the word “argument” in its sense in logic, as opposed to meaning a disagreement.  In logic “argument” refers to a claim that some specified premiss or premisses support/s a specified conclusion.  (A much fuller definition of “argument”, in its sense in logic, is in the book.)

 

        Every argument has some particular "form" or other.  Each “form” of argument is like a unique shape, such as, a square, or a circle.  All individual square-shaped objects “take” that same shape, of a square, with four sides of equal length and four right angles.  Although there can be an infinity of square-shaped objects, there is only one square shape.  Each form of argument is unique.  And, with respect to each form of argument, an infinity of individual arguments can “take” its form.  (A definition of the “form” of an argument is in the book.)

 

    A “fallacy” is a form of argument that is a perfect non-sequitur, that is, all individual arguments of any fallacious form of argument are illogically reasoned.  In other words, in every individual argument that takes the form of a fallacy, the premiss/es of that argument fail to support its conclusion.

      In every "ad hominem" fallacy: one premiss consists of an identified man’s alleged idea, a second premiss consists of some alleged attribute/s of his, in the conclusion only the worth of his alleged idea is judged, and, the premisses provide no logical support for the conclusion, that is, the premisses are irrelevant to the conclusion.  By a "man" in the preceding sentence, and in the next paragraph, is meant any person, regardless of gender or age.

        I searched for the composition of that ad hominem fallacy which is most broadly applicable in judging a man’s ideas, and discovered its composition, after many years of reflection (unless I overlooked an even broader such fallacy, despite a rigorous effort to avoid this possibility).  This ad hominem fallacy is very broadly applicable in judging a man’s ideas. 

     In the book the oft-used label “argument ad hominem” is rightly re-applied, to this broadest of all ad hominem fallacies, because, to apply that label to anything narrower is to omit, under that label, at least one existing species or other of ad hominem fallacy.  I also call argument ad hominem synonymously “the mega fallacy”, because of its vast breadth of applicability to a man’s ideas.

       My description of the composition of argument ad hominem is the only description of an ad hominem fallacy that is per genus et differentiam.  The book explains in precise detail: what all arguments ad hominem have in common (the genus), and, what distinguishes the species of this genus (the differentiam).  Each individual argument ad hominem belongs to some species or other of this genus, like each individual rat belongs to some species or other of the genus Rattus.  The ancient Greeks recognized just three species of ad hominem fallacy.  I discovered there are forty eight “basic” species (which include the Greeks’ three species), and there are countless more complex species.     

 

       The full definition of argument ad hominem, which appears in the book, is about 140 pages long, such is the complexity of this fallacy.  But stated next is a one-page functionally equivalent definition, quoted from the book.

                                         "The functionally equivalent definition of argument ad hominem

     The form of argument ad hominem is described in Part II, and is long and complex.  But there is a far shorter definition of “argument ad hominem” that is a functional equivalent.  Stated next is the functionally equivalent definition of argument ad hominem, to provide an immediate functional understanding. 

     An argument ad hominem is any illogical argument that:

1) rejects a man’s idea based on irrelevant criticism of him (be his cited attribute/s in the argument objectively critical of him and/or presented or implied as critical of him in the argument), or,

2) upholds a man’s idea based on irrelevant praise of him (be his cited attribute/s in the argument objectively praise of him and/or presented or implied as praise of him in the argument), or,

3) rejects a man’s idea based on an inconsistency between: i) some attribute/s of his (cited in the argument) and ii) his idea, provided the inconsistency reflects negatively on him, and/or the inconsistency is presented or implied in the argument as critical of him, or,

4) rejects a man’s idea based on both: a) irrelevant criticism of him (be his cited attribute/s in the argument objectively critical of him and/or presented or implied as critical of him in the argument), and, b) an inconsistency between: i) some attribute/s of his (cited in the argument) and ii) his idea, provided the inconsistency reflects negatively on him, and/or the inconsistency is presented or implied in the argument as critical of him.

     In this definition the following terms have the following meanings:

a) an “argument” means a claim (implicit or explicit) that some specified statement/s happen/s to support another specified statement as being any of: true, or, probably true, or, true or probably true, but not as being necessarily/unavoidably true, even if the allegedly supporting statement/s is/are true.  Explanation: a claim of a necessarily/unavoidably true conclusion can be made in deductive logic, but not in inductive logic, and argument ad hominem is inductive, not deductive.  Deduction and induction are different sorts of logic;    

b) an “illogical” argument means the conclusion of the argument is not supported, as a matter of reasoning, by whatever material in the argument allegedly supports the conclusion.  Assume that the allegedly supporting material in an argument is true.  If that material (assumed to be true) does not support the conclusion of the argument, then the argument is illogical;

c) “man” means any identified person, regardless of gender or age;

d) “a man’s idea” and “his idea” both mean a specified idea of a man, or, a specified idea allegedly of his;

e) a man’s “attribute” means an alleged attribute of his, whether he actually has that attribute or not."

         Here is an example of the first sort of argument ad hominem numbered above.  “John asserts the earth is round, but John is revolting, so the earth is not round.”  This argument ad hominem rejects a man’s idea based on irrelevant criticism of him.  John being revolting is irrelevant to whether or not the earth is round, making this argument illogical.  

      Importantly, in some exceptional sorts of circumstances, a man is relevant to the worth of his idea.  But nobody has identified all of these exceptional sorts of circumstances.  In the book there is a list of some of these exceptional sorts of circumstances: all those that exist within a specified ad hominem context, which context is defined in the book, and is called "the candidate context".  The candidate context, with the list of exceptional sorts of circumstances, provide the basis for a complete set of “exclusions”, such that the form I claim is the broadest ad hominem fallacy that exists, qualifies as a fallacy, rather than merely being a generally illogical form.  The respective compositions of the exclusions are all complex, and are specified in detail in the book.

     Thus, to know fully what argument ad hominem is, you will either have to read its unavoidably lengthy description in the book, or, discover its full composition for yourself.  Its full composition is the full composition of the broadest ad hominem fallacy that exists, as only this fallacy is rightly labeled "argument ad hominem", because this fallacy has greater logical significance than the other candidates for the label "argument ad hominem": 1) any narrower ad hominem fallacy, and, 2) any merely generally illogical form of ad hominem argument.   (Again, although I claim to have discovered the full composition of the broadest ad hominem fallacy that exists,  I might conceivably be mistaken, as there might - unimaginable to me - be an even broader ad hominem fallacy than the one I discovered, in which case, if it were found, it would rightly be called argument ad hominem.  This abstract possibility of error is hereafter ignored/not repeated in the rest of this web page, apart from in a disclaimer stated further below.)

                               Some modern errors regarding the composition of argument ad hominem

 

       Some modern writers (cited in the book) corrupt the notion of a "fallacy" by allowing a fallacy to be a merely generally illogical form, as opposed to a "fallacy" being a perfect non-sequitur.  These writers thereby call argument ad hominem a fallacy while asserting that there are exceptions to argument ad hominem being illogical.  But these writers neither provide a complete list of these exceptions nor claim to provide a complete list of these exceptions.  In contrast, with the aid of the complete set of "exclusions" noted above (and specified in the book), the composition of the broadest ad hominem fallacy that exists is now known, with a “fallacy” here meaning a perfect non-sequitur.  The broadest ad hominem fallacy that exists is very broadly applicable to a man's ideas, as shown in the book.  To know the composition of this very broad fallacy is more valuable than to know the composition of any merely generally illogical ad hominem form of argument. Thus the label "argument ad hominem" is rightly re-applied to refer to the broadest ad hominem fallacy that exists, not to any narrower ad hominem fallacy, nor to any merely generally illogical form of argument.

      A common modern error (cited in the book) is to include impeachment of a man's credibility under the label "argument ad hominem".  Judging a man's credibility is an importantly different topic from judging the worth of a man's idea.  To place both topics under the same label, argument ad hominem, is pointless.  Moreover, this dual treatment of what constitutes "argument ad hominem", makes this label, as so treated, fail to stand for a fallacy.  This failure is because various attributes of a man are relevant to his credibility, such as his bias, interest, or other motive.  The only topic in the conclusion of "argument ad hominem", where this label stands for an ad hominem fallacy, is a judgment of the worth of the man's idea alleged in the argument.  This is the only topic in the conclusion in both the full definition of argument ad hominem (in the book), and, in the conclusion in the functionally equivalent definition (quoted above).   

 

                                                         Testing the new definition, and a disclaimer

         Readers of the book can search for an argument that: 1) qualifies as an argument ad hominem under its full definition, and, 2) is logical.  I claim that no such logical argument exists.  Rather, the full definition of argument ad hominem (in the book) describes a fallacy, not a merely generally illogical form of argument, and the book includes a justification of this claim.

       I disclaim any responsibility if I have not discovered the composition of the broadest ad hominem fallacy that exists.  But I do believe I have discovered that composition.  And if I am mistaken, the error/s can be corrected if spotted. 

        The above two definitions of argument ad hominem can be put to practical use, in a proposed law, to counter effectively argument ad hominem in trials

        In the book is the text of a proposed law that expressly bans argument ad hominem in trials.  The proposed law has criminal sanctions for criminal violators, as with perjury.  Both argument ad hominem and perjury can deceive jurors, and both can thereby cause unjust verdicts. 

    The proposed law uses two definitions of argument ad hominem: the functionally equivalent definition (quoted above), and, the full definition (in the book). 

 

       The functionally equivalent definition is used to give the public fair notice of what is prohibited in trials by the proposed law.  The full definition is used in the proposed law for other purposes.  The full definition is of valuable use in the proposed law, for reasons explained in the book.    

 

        The proposed law provides examples of argument ad hominem, to give a concrete impression of each of the four sorts of argument ad hominem numbered in the functionally equivalent definition. 

 

         Unless a law is created that expressly prohibits argument ad hominem in trials, the injustice of argument ad hominem in trials will continue, and probably worsen, as shown in the book.

                               

                         The benefits of a law that expressly bans argument ad hominem in trials

      If the government creates an Anti Argument Ad Hominem Law with various attributes,[1] and this law is enforced, this will counter the mega fallacy effectively and lawfully in trials, and no known alternative will do so (as shown in The Solution to an Injustice in Trials). 

 

         Such enforcement will:

1) serve Justice for the parties in trials,

2) spare the trial and appellate bench, and the bar, much more work, in the long run, than if the required law is not enforced, by substantially preventing, with credible deterrence, argument ad hominem in trials,[2]

3) by such prevention: i) save much money for both the parties in trials and taxpayers (who fund the court system), and, ii) spare many jurors from the mental work and emotional pressure that argument ad hominem causes, which protection is both fair to them and serves Justice for the parties, and,

4) probably raise the public’s opinion of lawyers’ ethics[3] and of the judicial system as a whole, which is beneficial because public respect for the rule of law is important to its efficacy.

      A good side-effect of the proposed Anti Argument Ad Hominem Law is that some trial lawyers will study some of their cases for trial more carefully than they currently do, given: their new duty under this law to provide notice before trial of an intent to use “risky material” (Section 2 of the proposed law), and, the option of trial counsel to seek “judicial permission” before trial to make an argument in the trial that might be misunderstood to be an argument ad hominem (Section 48 of the proposed law).  Improved trial preparation by lawyers serves the interests of Justice.

     Also, if the government creates an effective Anti Argument Ad Hominem Law this will make the new definition very widely available, and that would probably benefit society in ways unrelated to trials,[4] and, benefit the government personnel who created the law.[5]

 

[1] These attributes are stated on page 48 of The Solution to an Injustice in Trials.

 

[2] This includes arguments ad hominem that use bigotry and prejudice about a person, such as based on any of the person’s: race, sex, religion, national origin, ethnicity, mental or physical disability, age, sexual orientation, or socioeconomic status.  An effective Anti Argument Ad Hominem Law would help to exclude from trials bigotry and prejudice about a person.

[3] In November 2012 Gallup recorded that in the U.S. only 19% of the public rated the honesty/ethics of lawyers as high or very high, 42% rated lawyers’ honesty/ethics as average, 28% rated lawyers’ honesty/ethics as low, and 10% rated lawyers’ honesty/ethics as very low.    Nurses scored best, of whom 85% of the public rated the honesty/ethics as high or very high, and car salespeople scored worst, of whom 8% of the public rated the honesty/ethics as high or very high.  http://www.gallup.com/poll/1654/honesty-ethics-professions.aspx

 

[4]  When a politician or anyone else regularly in the public eye argued ad hominem, the media could - and probably sometimes would - rightly criticize that person’s argument and show how it commits the mega fallacy.  Such criticism would probably reduce the amount that some such people argue ad hominem, and might even help some politicians to focus on being constructive for society.  And enforcement of an effective Anti Argument Ad Hominem Law would result in the new definition being additionally publicized, that is, beyond the definition just being published in that law and inThe Solution to an Injustice in Trials.   

[5] This personal and honorable benefit is described in The Solution to an Injustice in Trials in its Appendix Section 13, under: 1) the sub sub-heading Self-improvement, which is under the sub-heading “Rossian ethics”, and 2) in relation to attaining eudaimonia, under the sub sub-heading Aristotle’s ethics, which is under the sub-heading “Virtue ethics”.

                               The overall significance of argument ad hominem / the mega fallacy

      I label the broadest ad hominem fallacy that exists synonymously “argument ad hominem” and “the mega fallacy”.  The label “mega fallacy” is apt because this fallacy is very broadly applicable to human ideas.

 

       Arguing ad hominem and lying have something very important in common: both can deceive people.

 

       Deception can be highly destructive, be it in a trial or in a non-trial context.

      In a trial deception can result in an unjust verdict, whether the deception is caused by lying or is caused by argument ad hominem.  There is already a law that prohibits lying in a trial about a material issue, the law of perjury.  But a law is needed that expressly prohibits arguing ad hominem in a trial, in order to counter this quite common injustice effectively.  This necessity is shown in the book.

      Of course deception outside a courtroom context can also be highly destructive, such as in politics or in everyday life, whether the deception is caused by lying or is caused by argument ad hominem, or is caused otherwise.

 

       The composition of lying is simple and easily understood: an intentional misrepresentation made with an intent to deceive.  In contrast, the full composition of argument ad hominem is complex, and requires about 140 pages to describe, and so the full composition is not easily understood.  But what makes lying significant is not its simplicity but its destructive consequences, and similarly what makes argument ad hominem significant is not its complexity, but its destructive consequences.

        Lying is more insidious than argument ad hominem in that even people thinking logically can be deceived by lying, whereas, people thinking logically cannot be deceived by argument ad hominem, because it is a fallacy, an invariably illogical form of argument. 

       However, everybody thinks illogically part of the time, and some people think illogically much of the time.  What people think is often influenced by emotion, not logic.   If people only thought logically, argument ad hominem would deceive nobody, and so would have far less significance than it has.  Argument ad hominem contains an emotional aspect, and this aspect is what makes argument ad hominem sometimes deceive people.  This emotional aspect is described in the book, for the first time, in what I call “Commonality 4”: 

 

“COMMONALITY 4) The man indicated in Commonality 1, as portrayed in the argument (in Premisses 2 and 1), and, the worth of his alleged idea, as judged in the conclusion, both have the same emotional resonance, both negative or both positive, e.g. a bad man’s idea is false (both negative), or a good man’s idea is true (both positive).207

 

207 The psychology that underlies Commonality 4 is not part of Commonality 4, has not been researched by psychologists, but includes this: for most people, from childhood, to reject a man’s idea is easier if they dislike him, and to accept his idea is easier if they like him.  Argument ad hominem, when it persuades, at least sometimes exploits this emotional tendency.  The psychology that underlies argument ad hominem is discussed more in Part I, under the sub-heading The prejudicial potential of argument ad hominem.”

 

      The book describes six “Commonalities” in total.  These commonalities are six essential formative attributes that all arguments ad hominem have in common.  These six attributes constitute the genus of argument ad hominem, like there is a genus Rattus, with its 56 species of rats.

      Given the destructiveness of argument ad hominem, due to its power to deceive, psychologists should research its power to deceive, which they can now do, for the first time, because the full composition of argument ad hominem is stated, for the first time, in the book.

      Argument ad hominem is quite common in human disputes, be they in court, in politics or in everyday life. 

 

     Effective democracy depends partly on an electorate that is mostly able to reject argument ad hominem as illogical. Rationality is crucial for effective democracy.   Thus an electorate that is well-educated about argument ad hominem and its persuasiveness, despite it being illogical, is far preferable to a gullible electorate that is easily swayed by argument ad hominem, unless, one’s objective is to destroy or weaken a democracy.   The world has dictators and other people who have that objective.

      A politician or other person who has been identified correctly as an intentional arguer ad hominem who aims to deceive by their argument ad hominem, is intellectually dishonest.  What such people say should be examined dispassionately for whether their words are argument ad hominem, or false, or both.

      In the book I describe 48 basic species of argument ad hominem.  These species differ by: 1) which of four sub genera they belong to (critical, laudatory, circumstantial, or critical & circumstantial), and 2) by which of eleven criteria of the worth of an idea they use in judging the worth of a man’s idea.  The bad news is that only three of these 48 species were previously identified (one by Plato and two by Aristotle).  The good news is the remaining 45 species are now known, and are described in the book.  

      To know the full breadth of applicability of the mega fallacy requires either reading the description in the book of the fallacy’s full composition, or, discovering its full composition for oneself.  Sufficient here, to give  some sense of the mega fallacy’s major significance, is that the vast majority of ideas that people have in life can be illogically rejected (or illogically upheld) in argument ad hominem, including: all assertions of fact, and the vast majority of assertions of probable fact (with the exceptional logical circumstances identified in the book, and specifically excluded from the described fallacy, so that it is a fallacy, not just a generally illogical form of argument).

       Lying in a trial can be undetected by the court, and, argument ad hominem in jury deliberations can also be undetected by the court. 

      Sec. 49 of the proposed new law (which law is stated in the book) concerns invalidation of jury verdicts tainted by argument ad hominem, and related measures.  These measures include permitting jurors to inform the trial court of argument ad hominem in jury deliberations, and, encouraging jurors “… to inform the trial court, at the earliest opportunity, of any prejudice-based statement concerning the case that was presented before or during jury deliberations to a juror or jurors by anyone, including by a juror, including any such statement based on prejudice regarding a person’s: race, sex, religion, national origin, ethnicity, mental or physical disability, age, sexual orientation, or socioeconomic status.”  Sec. 49 (e).  The mega fallacy can deploy every sort of bigotry and prejudice about a person.  Social media should take note: hate speech and argument ad hominem intersect.

      So, whether one supports or opposes: justice in trials, rational democracy, or logical argument in everyday society, argument ad hominem is very important.


     If computers (including artificial intelligence) can identify argument ad hominem accurately, this would be highly significant, given the destructiveness of argument ad hominem.  Social media companies could use computers to flag suspected argument ad hominem for their users.  Judges and lawyers could use computers to flag suspected argument ad hominem in trials and in court-filed documents.  Journalists could use computers to flag suspected argument ad hominem in politics and in other public discourse.  And perhaps one day the public could regularly use its own computers to flag suspected argument ad hominem in text or audio, like some people regularly use their computers to check spelling in text.

      Given the destructiveness of argument ad hominem, computer and language experts should determine if computers can be made to identify argument ad hominem accurately.  Computer and language experts can now make this determination, for the first time, because the full composition of argument ad hominem is stated, for the first time, in the book.

 

      Artificial intelligence is already known to be formidably accurate in its decisions within tightly defined topics, such as the potent accuracy (but not infallibility) of AlphaZero in chess.  Whether the book's approximately 140 page description of the composition of argument ad hominem is sufficiently tightly defined for artificial intelligence to identify argument ad hominem accurately, is a very important question.  We do not want computers categorically telling all of society what is illogical, but we surely should use computers to flag suspected argument ad hominem in some walks of life, if and when computers are usefully accurate in this regard.

                          When, if ever, will a law expressly ban argument ad hominem in trials ?

      Christopher Columbus took about two months to sail across the Atlantic Ocean.  But he required about seven years to raise the funding for his journey of discovery.  The funding was finally provided by Spanish monarchs, Ferdinand II and Isabella I. Apparently, for Columbus, obtaining backing was more difficult than sailing across the Atlantic.  Other matters competed for the attention of Ferdinand and Isabella, such as expelling the Moors from Spain.  To obtain approval from the powers that be, regarding a new idea, is sometimes difficult.  Other matters than preventing argument ad hominem in trials compete for the attention of today's law-makers, such as the Covid-19 pandemic.  

       Before the Covid-19 pandemic America's federal law-makers (Congress and the U.S. Supreme Court) and the United Nations were notified of the possibility of a law that expressly bans argument ad hominem in trials, and were mailedThe Solution to an Injustice in Trials.  But whether anyone in any government has considered the text of the proposed law (which is stated in that book) is another matter.   The last sentence of the Epilogue in The Solution to an Injustice in Trials is: "Nations fortunate enough to have a present opportunity to create an effective Anti Argument Ad Hominem Law should seize the opportunity, because fortune is fickle."  This was written before the Covid-19 pandemic.  After the pandemic ends perhaps the above-quoted sentence will be heeded, given the considerable benefits of creating such a law. The sooner such a law is created the better, all other things being equal.