Abstract
This paper lies at the intersection of law and logic. Logical analysis is employed to attempt to make headway in what has proven to be an intractable interpretive debate over a defence provision of the Indian Penal Code.
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Notes
A further aspect of non-parochiality may be flagged: The morals of this paper are general, in applying to legislative drafting and statutory construction across the board. Indeed, an issue of very similar form to that broached in this paper has cropped up in Singapore in the different context of bankruptcy law, and with respect to intention (Public Prosecutor v Low Kok Heng [2007] SGHC 123).
In the case authorities that follow (from India and Singapore) an argument could be made consigning, or relegating, them to obiter (i.e. a status less than ratio); but I think any such argument would be somewhat specious.
I take ambiguous throughout in a broad sense: roughly, uncertainty or dubiousness concerning a term’s meaning. This broad sense includes, but is not limited to, the philosopher’s sense of ambiguous—that is, a sign’s bearing multiple meanings. Notably, this broad sense includes vagueness and vagueness itself, throughout, must be construed broadly, so as to include so-called ‘open-textured’ terms—that is, terms of uncertain application at the borderline. (On one view, the ability to run a so-called ‘sorites’ argument is essential to vagueness; and not all open-textured terms will be amenable to sorites arguments). All told, it may be wiser to replace the term ‘ambiguous’ with ‘unclear’ or ‘obscure’.
Of course, this result—that, for the purposes of Indian law, we must identify plain meaning with what is literally said—still leaves much open. Most saliently, perhaps: Is the meaning of what is literally said to be determined by so-called ‘conventionalist’ or ‘realist’ semantic theories? This interesting debate over legal interpretation can be safely bracketed, however, given I’m here merely (syntactically) assigning logical form to what is literally said. For a seminal treatment of this debate, though, see Brink [2].
As stage (i) of this interpretive procedure will result in the assignment of a logical form to this limb of s. 84 which plausibly does contain several open-textured terms (e.g., perhaps most obviously, “wrong”) it will be appropriate, in certain s. 84 cases involving the borderline of such terms, to proceed to stage (ii) to resolve issues of open-texture. (And the point generalises. Given the prevalence of open-textured terms, stage (ii) will frequently arise.) However, it is important to stress that, in such cases, we proceed to stage (ii) already armed with this limb’s logical form, and resolving issues of open-texture will not alter that logical form.
At this point, it is worth stressing the following: None of what I say is to preclude other additional methods of analysis (other, that is, from philosophical logical analysis assigning logical form to the provision) being brought to bear to assist in gaining understanding of a Penal Code provision. The point of the present paper is to investigate what insights can be gained from a logical analytical approach. Thanks to an anonymous referee for this point.
Throughout I leave the modal operators (viz. possibly and necessarily) uninterpreted. Clearly, though, in order to capture the germane feature—viz.: the defendant’s incapacity (to know)—, some fairly weak interpretation will be apposite. Without committing on how to define this interpretation, the notion of cognitive possibility and necessity seems suitable. Roughly, we’re asking: Given the defendant’s cognitive capacities, is it (metaphysically) possibly/necessarily the case that he knows that he is doing what is either wrong or contrary to law.
My discussion in this paper is rather abstract; for case law relevant to this limb to mitigate this, see Yeo et al. [3, pp. 691–693]. It’s to be noted that it’s not clear case law is particularly attentive to the modal element of s. 84: it’s “incapable of knowing…”; not ‘doesn’t know’ (cf. Sect. 5 infra).
Why try to parse (0) at all? Because it is fairly intractable—though not (syntactically) ambiguous—as it stands More on this later.
(1) is the De Morgan equivalent of: ~(Poss K W ^ Poss K CL). (Not: ~Poss (K W ^ K CL). This could be false, not because K W or K CL is not possible, but because they are not compossible.).
YMC [3, p. 692].
(2) is the De Morgan equivalent of: ~(Poss K W v Poss K CL). (Note that, given the possibility operator distributes and collects across disjunction, these propositions are equivalent to: ~Poss (K W v K CL).).
There are two uncontroversial background assumptions: (i) The possibility and necessity operators (i.e. ‘Poss’ and ‘Nec’, respectively) are duals (That is: (a) Nec p is equivalent to ~Poss ~p, and (b) Poss p is equivalent to ~Nec ~p.) (Recall, we’ve left the modal operators uninterpreted. On any plausible interpretation of these operators—such as n.7’s cognitive one—assumption (i) is in good order.) And (ii) The disjunction operator (i.e. ‘v’) is Boolean. (That is, it can only have the value true or false.).
On this point, and also on subsequent discussion of this argument, cf. Sect. 5 infra.
The coming counterexamples suggest that testimony is another way. But, plausibly, to be an original knower of a disjunction, either one knows it by disjunction introduction or by narrowing down the epistemic possibilities.
Moreover, if we assume the law of excluded middle (viz. for any proposition, p: (p v ~p)), for any proposition, p, if I can know neither it nor its negation, we will have another (set of) counterexample(s) to the conditional in question.
The alternative way of carving up the relevant epistemic space is: (W v CL v ~W v ~CL). The ensuing argument, however, would not be substantively altered if one were to adopt this alternative account of epistemic space.
The proponent of this argument would consider this to be an interesting feature of a proper subset of disjunctions: When one attempts to come to know a disjunction by narrowing down epistemic possibilities, and when the relevant epistemic space consists of a (or several) disjunction(s), D, and when the only way to narrow down epistemic space in order to know the disjunction one is seeking to come to know, DK, involves, as a prerequisite, knowing DK, one cannot come to know DK by narrowing down epistemic possibilities The ‘(W v CL)’ case would, according to this proponent, have this feature, whereas the ‘Danny’ and ‘France’ cases would not.
The attempted reply doesn’t need such an assumption; but the assumption renders things less complicated.
Assuming, uncontroversially, that the necessity operator (i) distributes (i.e. that:
[Nec (p ^ q) > Nec p ^ Nec q]) and (ii) collects (i.e. that: [Nec p ^ Nec q > Nec (p ^ q)]) across conjunction. Assumption (i) secures (4) entailing (5); assumption (ii) secures (5) entailing (4), and thus the equivalence relation.
See YMC [3, p. 691]. For a contrasting view that English law is more complex than this, see Simester, Spencer, Sullivan, & Virgo (S&S) [4, pp. 721–722]. In broad outline, S&S seems to read English law as setting a form of conjunctive test, viz.: ~K LW ^ ~K COSARM. Here, ‘COSARM’ is the act is contrary to “the ordinary standards adopted by reasonable men” (see Codère (1916) 12 Cr App R 21, 27 and M’Naghten, 210, 723), which is a (potentially) distinct notion from moral wrongness The controversy between YMC and S&S seems to hang on how to read Windle ([1952] 2 QB 826, 834)), a case which doubted the relevance of COSARM: S&S regard “[Windle’s] remarks on this point [as] obiter only”, whereas YMC apparently regard these remarks as going to Windle’s ratio. Finally, as just indicated, it is to be noted that the M’Naghten Rules, unlike s. 84, don’t contain the modal operator, ‘incapable’ (cf. n.8 supra).
Again, cf. n.8.
In fact this is not a purely rhetorical question. Singaporean law (and many other jurisdictions are no different) in fact operates with a philosophically obtuse notion of knowledge. Case law on the definition of knowledge in Indian/Singaporean law is somewhat in disarray (knowledge is not defined in the Code). But we can note that the leading (Malaysia and Singapore law) textbook, YMC [3, p. 94], defines knowledge as “awareness of certain facts with absolute conviction or certainty as to their existence”. Now it would be mistaken to suggest anything approaching philosophical univocality regarding knowledge—on the contrary, its analysis is one of the most contested areas of contemporary epistemology—, however epistemologists have long been (fairly unanimously) clear that neither awareness nor certainty is a condition on knowledge. So what? Well, insofar as epistemologists are to some degree succeeding in (one of) their aim(s) of elucidating the everyday notion of knowledge, it might be thought to be nothing short of a scandal that the criminal law should so thoroughgoingly depart from that notion. It’s important to stress what this is not to claim. It’s not to claim that defences (and criminal law mens rea requirements of specific offences) which impose a knowledge constraint, and which consequently apply mistaken tests for knowledge, such as the YMC definition delineated above, must be substantively altered: the tests themselves might be the (morally) right tests to apply. But, if so, as a matter of labelling, we should call those tests what they are, rather than obtusely appropriate the term ‘knowledge’ for the job. Finally, note that none of the foregoing is a threat to any of my moves in Sect. 4: those moves operated with an intuitive notion of knowledge, and didn’t commit on any controversial (mistaken) analyses thereof. Importantly here, I’m confident those moves would go through on a charitable interpretation of the above-stated YMC definition of knowledge.
References
Justice Singh, G.P. 2012. Principles of statutory interpretation, 13th ed. Dayton: LexisNexis.
Brink, D. 1988. Legal theory, legal interpretation, and judicial review. Philosophy and Public Affairs 17: 105–148.
Yeo, S., N. Morgan, and C.W. Cheong. 2011. Criminal law in Malaysia and Singapore, 2nd ed. Dayton: LexisNexis.
Simester, A., J. Spencer, G. Sullivan, and G. Virgo. 2015. Simester and Sullivan’s criminal law (S&S), 5th ed. Bloomsbury: Hart Publishing.
Acknowledgements
Thanks to Andrew Halpin, Andrew Simester, Lee Walters, John Williams, and Stanley Yeo for stimulating discussion, and to an International Journal for the Semiotics of Law referee for helpful comments.
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McBride, M. Knowledge and Insanity. Int J Semiot Law 30, 625–636 (2017). https://doi.org/10.1007/s11196-017-9509-x
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DOI: https://doi.org/10.1007/s11196-017-9509-x