The Need for Canonicity

Part 1 of a series on courts

We are facing several interconnected social crises:

• The (justified) loss of trust in traditional institutions

• An increasingly adversarial and confusing information environment.

• The de facto unusability of the justice system

I don’t need to belabor the first two points too much. Social media is full of noise and vitriol and falsehoods; scientific fraud is rampant; newspapers have explicitly embraced “picking a side” in politics instead of “straight” reporting; governments have grossly mismanaged the COVID-19, energy, and supply chain crises; and so forth.

The third point is perhaps worth unpacking further.

In practice, when you are the victim of a crime or a tort, you will probably not go to court about it.

Only about half of the violent crimes and a third of the property crimes in the US are reported to the police, according to Pew Research. And of those, only 46% of violent crimes and 19% of property crimes reported to police are “cleared”, i.e. led to the arrest and prosecution of a suspect. That is, violent crimes have only a 21% chance of leading to a prosecution, and property crimes have only a 6.5% chance of leading to a prosecution.

Of the crimes that are prosecuted, very few go to trial; over 97% of state and federal criminal cases end in a plea deal.

In the US, the criminal justice system is basically never used for its stated purpose. When a crime is committed, usually nothing happens to the criminal; but if someone is charged with a crime, usually they are convicted with a guilty plea deal, not given a trial.

Civil cases usually cost at least $10,000 and can take years to resolve, so ordinary individuals very rarely go to court over disputes. When they do, they almost always end in a settlement or a dismissal; only 1.2% of civil cases end in a jury trial, down from 20% in 1936.

The US’s rate of civil litigation per capita has actually fallen precipitously since its peak in the 1840s.

These are statistics for St. Louis — I couldn’t find anything for the US as a whole.

Similarly, in Victorian England the number of civil cases per capita was a factor of ten higher than it is in the UK today.

In the first half of the 19th century, it was common for Americans to sue over contract disputes and unpaid debts, even for relatively small dollar values. That’s not true today. I can think of several instances in which someone has told me about a contract dispute — someone went back on an agreement and didn’t pay what was owed — and filing a lawsuit never once came up as a practical possibility.

Individuals just don’t seem to use the court system as a routine way of resolving disputes. It’s too expensive, it’s too slow, it’s too hard to understand.

For certain kinds of accusations, especially ones about abuse or sexual misconduct, it’s become common to use an alternative remedy: publicizing the allegations.

Public allegations have several real advantages over criminal prosecution. They are much faster and cheaper; they are less likely to retraumatize the accuser than dealing with the police and court system; and they only result in reputational damage to the accused, not incarceration.

The downside of accusations without judicial proceedings, of course, is that some people will believe the accusations and some people won’t, and there’s no shared context where the facts of the case can be deliberated and everyone can agree to accept the court’s conclusions. Instead of dispute resolution, you get opposing factions, which can stay at odds indefinitely.

Public allegations and the “court of public opinion” are a highly imperfect patch on a profoundly inadequate justice system.

Why does this matter? And what does it have to do with collapsing institutions?

The purpose of a court is to create a shared, commonly accepted procedure for adjudicating disputes. Courts create common knowledge of who has violated norms. Courts produce a canonical account of how disputes were resolved in the past, and which positions were judged “in the right” or “in the wrong.”

Without an effective court system, a society or even a subculture or small community cannot “get on the same page” as to what, and who, is trustworthy. Bad actors cannot be held accountable. Norms cannot be enforced reliably.

The usual responses, when people see an institution that is untrustworthy, are publicizing allegations and proposing new institutions or reforms.

You see a scientist who committed research fraud, for instance, and you say “Hey, this guy’s a fraud”, as loudly as possible. Maybe you try to spin up alt-science institutions that will be more fraud-resistant. You create tools like PubPeer to allow anyone to report suspected data manipulation.

Meanwhile, the fraudster still usually has his academic job and grant funding. Sufficiently radical people might see this as good enough reason to lose respect for the university or granting organization; they might start their own independent research institutes or their own private granting agencies.

But now we have the same issue of “factionalism” around fraud allegations that we do with #MeToo and rape allegations. Some people believe the allegations; some don’t; most people pick the “side” of the people they like best.

There is no canonical narrative, easily recognized by a well-meaning outsider as the most thorough and evenhanded investigation of the allegations, weighing both the arguments of the accuser and the accused.

Canonicity isn’t an impossible dream. Wikipedia is the canonical source on most factual topics. If two people have a disagreement about the kind of fact you might find on Wikipedia, they can generally say “let’s look it up and see what Wiki says.” Wikipedia has a justified reputation, across communities and ideologies, for being largely accurate and for having a “neutral point of view.” As a Schelling point for fact-checking, Wikipedia is clearly the best thing around — it’s the highest-quality source that most people know about, and most of us can agree to trust it most of the time.

There’s a difference between “somebody (maybe with a personal axe to grind) has made allegations of serious malfeasance” and “the obviously best available independent investigatory body — with a track record of thoroughness, disinterestedness, fairness, etc — has concluded that the allegations are true.”

You can’t replace old, untrustworthy institutions with new, trustworthy ones immediately. Why should anyone believe that the new institutions are any better than the old ones? The first trustworthy new institution has to be an investigatory body that makes a serious, evenhanded appraisal of the allegations against the old ones.

It’s one thing for there to be “correct contrarians” who were right when institutions were wrong (noticing COVID-19 early, raising the “lab leak” hypothesis, pointing out the importance of aerosol transmission, noticing that lockdowns caused economic harm without preventing the spread of disease, etc.) But the mere presence of “correct contrarians” doesn’t allow them to coordinate, to do useful things together, to create a better system for handling pandemics.

Why not? Canonicity.

There are people with gripes about the current state of the world, there are proposals to make it better, but we are not at a point yet where a critical mass of intellectually honest people would say “this alt institution really is what the CDC and the WHO were supposed to be.” Establishment institutions are still the most canonical institutions around even if you don’t trust them very much; there is no new thing that has taken up their mantle. There is not even a canonical, clearly-best-available, evenhanded and thorough and non-politicized, investigation of What Went Wrong With COVID Response. If there were, anybody who wanted to Do Better Next Time could use the investigation as a common-ground starting point. Without it, getting any nontrivial number of people “on the same page” about what should be done in future is impossible.

Emily Oster’s call for a “pandemic amnesty” is right that endless partisan recriminations are undesirable and we need some kind of compassionate way to move on from the pandemic. Maybe, indeed, we want something like “amnesty” in the sense of choosing not to punish anyone for what they did during the pandemic. In a situation where sufficiently many people are culpable, it really can be necessary to declare a fresh start and cancel the debts of the past. But, ideally, we wouldn’t forget the past two years either; we would look into what happened, establish who did what, what the consequences of various policies were, and whether decisionmakers could have done better given what they knew at the time (sometimes, contra Oster, the answer is yes!) You can’t “move on” and do better next time if you can’t establish what went wrong in the first place. Justice doesn’t have to be punitive; the important thing is not penalties but setting the record straight.

The single most credible thing, in a world where nothing is credible, has to be a systematic neutral investigatory procedure.

A court system — a formal procedure for resolving disputes by evaluating arguments — is one of the most ancient types of systematic neutral investigatory procedure.

Prediction markets are also plausible candidates for a source of canonicity — they also allow different opinions to converge on a single result, and participants with different opinions can agree that the prediction market’s conclusion will in general be more accurate than their own initial opinions.

But prediction markets are forward-looking. That’s not the fundamental thing we need, for the purpose of establishing trust. Before we talk about things like “this institution uses prediction markets, so we expect it to make better decisions”, or even “this institution will lose credibility and access to resources if the prediction markets lose confidence in its future performance”, we need to establish “this institution will be investigated if it screws up and its misdeeds will be recorded.” That’s a job for courts, not prediction markets.

In future posts I’ll talk about why we should expect this kind of “court system” to even be possible in a world where the official/state-sponsored court system exists and doesn’t fill this need.