The Measure of Time

by Gianrico Carofiglio

  I sighed. It had been kind of him to discuss the subject with me. But after those words, there wasn’t much else to add.

  The young magistrates I was supposed to be giving the talk to had arrived, so we went in. Cotturri gave a brief introduction, and while he was speaking I had a look at my audience.

  They were all about thirty. The men in jackets and ties, the women dressed more freely, some of them pretty. Seen individually, they would have looked like what they were, that is, young adults. Seen all together, they looked like people suspended between being students, almost still adolescents in a way, and what they would soon become as magistrates. Judges and prosecutors, holders of the greatest (legal) power there is. I’ve sometimes asked myself what I would have been like if instead of becoming a defence lawyer I had chosen the magistrature. I’ve never come up with an answer. Some magistrates are like Cotturri, they have an awareness – and are able to preserve it through all the daily grind of their profession – of how inconceivable, even shocking, it is that a man can decide on the freedom and the destiny of another man. They treat this power with the necessary circumspection and a healthy dose of scepticism, especially towards themselves. Others don’t. Everything becomes routine, people become files and papers, and in all this there’s an element of terrible brutality, even if it’s involuntary. I don’t want to be moralistic about it. Of course, it’s much easier to have an awareness of the people who are behind or beneath the paperwork if you’re in defence. If you’re a magistrate, though, and every day you’re submerged by cases, arrests, trials to be handled and deadlines to be met, it’s possible – and it’s almost a question of psychological survival – that you forget the fragility of the material you’re dealing with.

  I was so absorbed in these ruminations that I almost gave a start when Cotturri handed over to me. I took a last glance at my notes, took a deep breath and began.

  “The title of our talk may suggest a discussion of the investigations carried out by the defence. Let me clarify immediately that I won’t be saying a word about investigations carried out by the defence. I’m going to talk about things that at first may strike you as off-topic. I’ll ask you to suspend judgement until the end of this hour, or a little more, that we’ll be spending together, when you’ll be able to give an overall assessment.

  “The law, the legal process – the criminal process in particular – are instruments put in place to regulate conflicts, and as such have to deal with the complexity of reality. In the complex reality we’re obliged to confront, there are multiple points of view and reasons are almost always distributed, even if unequally, among the various protagonists of a relationship or a disagreement.

  “A great mathematician, Stefan Banach, once said that good mathematicians are capable of grasping analogies. The same goes for jurists. A good jurist, too, is capable of grasping analogies, and to do so, naturally, it’s vital in the first place that they possess the technical know-how.

  “But that’s not enough. To become aware of analogies a jurist cannot be content with the rules of the discipline within which they work. It’s necessary to learn to observe these rules from the outside, in such a way as to grasp their nature and their limitations with the right degree of detachment.

  “A jurist must – I emphasize must – devote a sizeable part of their time to things that to all appearances have nothing to do with the law: reading good novels, watching good films, even good television. In short, they must take nourishment from good stories.

  “Why must? you could legitimately ask. Because it’s the art of the storyteller that reminds us that there is not just one single answer to human dilemmas. These dilemmas are inevitably ambiguous. The characters in good novels and good films represent various points of view about reality. Think of a brilliant work like Rashomon, where a story that might appear very simple becomes, in the accounts of the four protagonists, a plurality of stories that are actually incompatible with one another. Or think of that passage from The Brothers Karamazov where Ivan asks his brother Alyosha if he would be willing to torture a little girl to guarantee the happiness of the whole human race.”

  I paused, to try to read in their faces the effect – if there was one – of what I was saying. They seemed attentive, although with different shades. Some looked sceptical – young magistrates often have very little sympathy for defence lawyers – and others curious. One young woman, more than all of them, attracted my attention for a few moments. She wasn’t beautiful, but had intense, slightly stern grey eyes.

  “Now I want to propose a dilemma in the form of a hypothetical story. Imagine the undercarriage of a train engine that’s come loose and is hurtling out of control along a railway track to which five people have been tied. If the undercarriage reaches them they’ll all be killed. Imagine you’re on the spot and you can pull a lever that’ll divert the undercarriage onto another track where just one person is tied. What would you do?”

  They hadn’t been expecting a question. After some hesitation, two or three replied that they would pull the lever.

  “You’re in good company. The vast majority of those who are asked the question answer that way. It’s better for one person to die rather than five. Correct?”

  Some nodded, others were puzzled, almost suspicious of falling into a trap. Decidedly, though, I now had their attention.

  “Now imagine another situation. You find yourselves on a bridge beneath which the track with the out-of-control undercarriage passes. The five people are still tied to the track. With you on the bridge is a very fat man. If you throw him over, his body will bring the undercarriage to a halt. So, as in the first example, one will die and five will be saved. What do you do this time? Do you send the fat man to his death?”

  For a few moments there was silence. Then the young woman with grey eyes spoke up. She had a low, slightly nasal voice, with a light but pleasant touch of accent. Undeniably, she was from Bari.

  “Conceptually, it appears the same. But instinctively, I feel like saying no. There’s something not right about this second example.”

  “You’re right, conceptually it’s the same thing: from a utilitarian point of view, it’s a lesser evil if only one person dies and five are saved. In your opinion, why is there something not right in this example?”

  “You would have to physically push the fat man.”

  “Of course, and that’s unpleasant. But from the point of view of ethical algebra it doesn’t change anything. Okay, let’s introduce a variant that eliminates this factor of psychological disturbance, that is, the idea of entering into physical contact with the person who will have to die. Imagine that there’s a trapdoor and you can activate it with a lever, so that the man will fall onto the track without your having to touch him. What do you do? Do you activate the trapdoor?”

  The young woman slowly shook her head. “No, I don’t think so.”

  “Why not?”

  She took a deep breath and half closed her eyes, like a short-sighted person trying to focus on an object in the distance. “Maybe the two cases aren’t as similar as it seems. There’s a subjective element, an element of intent. In the first example, we don’t want the death of the single man on the track. In the second we actually want to kill the fat man, even though it’s for a good cause. In both examples there would be a feeling of necessity, I think. But the second one produces what we could call a moral unease.”

  “Very good, yes. We could add that in the first example the death of the single man isn’t even necessary to save the other five; he’ll probably die, that’s true, but in theory he could manage to get loose and run away, and in that case all six would be saved. In the second example, the fat man’s death is necessary to our purpose. If after falling, after we’d made him fall, he managed to roll away, the five we wanted to save would die.

  “So to save the others we have to want to kill an innocent man. That’s the reason the majority of people who are asked the question, though they can’t explain why, as y
ou did, say they feel instinctively that this would be a bad act.”

  *

  The young woman pursed her lips and made the kind of face made by someone who’s pleased with a success or a compliment but doesn’t want to show it.

  I looked away from her and let my gaze wander over the faces of those young people. For many of them, I thought, becoming a magistrate was the culmination of a process – and a dream – that had begun on the first day of university and ended with their exams. I remembered my old friend and classmate Andrea Colaianni. He had studied law with passion and determination. His aim was to become a magistrate and change the world. You could say he got halfway to achieving it: he had graduated with flying colours, but had soon discovered that changing the world is, in the best of cases, an unintended consequence of our actions.

  I had never had that passion. I hadn’t had a dream which had reached its culmination. I had become a lawyer by chance, or at least so I’ve always told myself. Though some people say there’s no such thing as chance and that we use the word to indicate something else we can’t identify or don’t want to understand.

  Be that as it may, I had never had the privilege of imagining that my future lay in this profession. In fact, I had always thought of it as temporary. Sooner or later, I would find something I really identified with.

  Somebody once told me that the most beautiful things to remember are the dreams you had as a child, especially if you’ve realized them, at least partly. They echo with the poignant note of the past and possess the indistinct excitement of the future.

  The problem was that I hadn’t allowed myself to cultivate the dreams I would have liked: to study the things I felt passionate about, to write, to produce ideas. Out of fear, I had decided that these were dangerous illusions. So I had forbidden myself to cultivate them. The adult world doesn’t allow for enthusiasms: that had been my confused, childish thought as I faced life.

  I resumed speaking.

  “Legal conflicts often reflect moral dilemmas, the juxtaposition of different ways of seeing values and their hierarchy. And we mustn’t forget that visions of the world change very quickly. Two centuries ago, or even less, the vast majority of people in the West (normal people, often decent, honest people) believed that inequality between blacks and whites, men and women was just and moral. They believed it was just that they should have different rights. They believed homosexuality was a disease or a crime. Obviously the list could be extended, to include for example the rights of children, the very awareness of children as human beings with rights of their own.

  “Have you ever wondered which of our current moral beliefs will be rejected or even seem grotesque to future generations?

  “Do rights come from nature? If they do, how can we know that a certain right exists and what its characteristics are? Thomas Hobbes defined natural laws as those that have been laws since time immemorial. Unfortunately, there are no laws of this kind.

  “Nature is morally neutral. It consists of wonderful things and horrible things. It makes no distinction between right and wrong. In nature there are no rewards or punishments, only consequences.

  “Think for example of the family, a category that’s often invoked – often in bad faith – by some inept supporters of the existence of natural rights. Think of how the family was regulated in our system before the reform of 1975. It was a family founded on the subordination of the wife to her husband in personal relations, in property relations, in relations with the children. A family founded on the discrimination of children born out of wedlock from so-called legitimate children.

  “If you had discussed the idea of the natural family in the 1950s, you would very likely have found people prepared to maintain firmly that such a family was in fact one based on the above-mentioned subordination and the above-mentioned discrimination. People no different from those who nowadays insist on denying rights to same-sex couples.

  “All laws, says Jeremy Bentham, are imperfect and constantly changing human inventions. Even so-called natural law in all its variants is a human invention, disguised as a discovery or a revelation to give it greater authority.

  “Abandoning this historical perspective, and looking at the present day, we must acknowledge the existence of different and opposing moral systems. The plurality of points of view about facts and values serves as an antidote to the danger of the absolute truths believed in by fanatics, about which the philosopher Norberto Bobbio spoke in a famous essay.

  “The function of the defence counsel in a criminal trial is linked to this: the necessary awareness of the plurality of points of view about values, about rules, about facts. It consists, bringing it back to its theoretical nature, in systematically questioning absolute or pre-established truths in order to solicit judgements that are correct and that the largest number of people can agree on. In this perspective let us recall some basic principles of good judgement, taking our inspiration from Aristotle.

  “We mustn’t decide in haste: when decisions are made that involve important interests, we have to think slowly.

  “We need to verify the information – in other words, take nothing for granted. Taking for granted things that can’t be taken for granted produces flawed – that is, incorrect – arguments, because they’re based on false premises.

  “When we don’t have sufficient instruments to evaluate a specific situation we need to consult independent experts.

  “We need to observe the situation, examining the points of view of all the parties involved. If we say somebody is right, we also have to say that somebody else is wrong. We therefore need to be conscious of the fact that even the best judgement will be perceived in good faith by somebody as unjust.

  “We need to consider the possible outcomes of a judgement, carefully weighing the pros and the cons. That is the case above all with protective custody, which basically involves a prognostic judgement. Article 274 clause c of the code of practice authorizes the limitation of personal freedom on the basis of a prognosis, a judgement of a predictive kind. A suspect is placed under arrest for a serious crime when it’s predicted that, if they’re let free, they will commit further serious crimes. Needless to say, this is a necessary rule, and helps to avoid dangerous individuals remaining at liberty while criminal proceedings are still under way.

  “But in this case, as in others, we have to remember that man is an animal that’s not very good at making predictions.

  “In the second decade of the last century, a man named Charlie Chaplin asserted that the public weren’t interested in seeing figures moving on a screen, only flesh-and-blood human beings on a stage. In 1932 Albert Einstein declared that it would never be possible to produce atomic energy. In 1943 the head of IBM, Thomas Watson, maintained that in the future there would be at most five people in the world interested in buying a computer. In 1995 Robert Metcalfe, the inventor of Ethernet, pontificated that the Internet would soon become a supernova and would collapse by 1996. In 2007 Steve Ballmer, the former CEO of Microsoft, said there was no possibility that the iPhone would capture a significant share of the market.

  “I could go on. A professor at Berkeley, Philip Tetlock, has looked at tens of thousands of predictions made by hundreds of experts over a period of ten years, and reached the conclusion that the accuracy of such predictions would have been the same if they’d been randomly generated by a computer.

  “There are situations in which making predictions is unavoidable. The awareness of how unreliable they are should, however, lead us to be cautious – whatever our profession, because in every profession we make judgement calls and gamble, often unconsciously, on their outcome – in order to thwart the enemy number one of good judgement: fallacies, errors made in the formulation of an argument that render it invalid or incorrect.”

  I went on to say that fallacies prevent a discussion – whether public or private – from advancing logically and in fact make exchanges of opinion pointless and judgements invalid or incorrect. I covered this s
ubject at some length, and after a while realized I had to get to the point if I wanted to keep to the time limit.

  “There are many kinds of fallacies, and we don’t have time today to linger over the various categories, which are something cognitive scientists and exponents of argumentation theory deal with. Anyone who wants to go into the subject in greater depth – which I would strongly recommend – will find some excellent works on the market, some of them educational.

  “Right now I’d like to use as a springboard the observation that what we say is often invalidated by procedural errors in the examination of the facts. Strictly speaking, what we mean by incorrect procedures are those characterized by infractions of the rules regarding due dates, time limits, filing of suits. But procedures that lead to fallacious arguments, whether or not those who perpetrate them are aware of it, are also incorrect procedures, because they infringe the rules on valid discourse.

  “The function of the defence counsel is to make sure that nobody is convicted on the basis of incorrect procedures, and this function can be summed up as what we might call ‘the act of asking questions while doubting’. Asking questions, of others but above all of ourselves, doubting accepted truths and rules. In each sphere – rules and facts – as an exercise of our intellectual and ethical muscles. Taking nothing for granted.

  “Was the killing of Osama bin Laden a premeditated murder or a significant act of justice, a form of pre-emptive self-defence, given that the man might be planning further criminal acts? The same could be asked of the killing of Palestinian terrorists by the Israeli secret service. And is it legitimate to torture a terrorist to make them reveal the whereabouts of a hostage whose life is in danger or the location of a deadly device that’s about to blow up and kill innocent people?

  “I don’t have unequivocal answers and I’m suspicious of anyone who claims they do. Many questions that are presented to those who exercise our professions – defence counsel, prosecutor, judge – don’t have unequivocal answers.