Recent Book: A Legal Question: Evidence, Proof and Probability
| DOI | 10.1177/0032258X7905200219 |
| Date | 01 April 1979 |
| Author | Colin Staples |
| Published date | 01 April 1979 |
| Subject Matter | Recent Book |
THOU
SHALT
NOT
...
MICHAEL
FOUCAULT:
Discipline
and
Punish: The Birth
of
the Prison.
Pantheon, New York, $10.95
Michael Foucault is an innovative and
controversial author. His Madness and
Civilization is accepted as the definitive
study of mental illness - a historical and
penetrating examination of the cultural
perspectives of madness.
Discipline and Punish is a historical
and penetrating look at the concept of
the prison -its origin, purpose and reason
for longevity given so
poor
a record of
rehabilitation.
Foucault correctly notes that the
prison was
born
of the rehabilitative
ethic and the concept of individualized
treatment. However, it is too simplistic to
say
that
the prison performs afunctionin
capitalist society of turning criminals
into cases, thus separatingthem from the
body of the working class, and by so
doing, reducing proletariat solidarity
and effective protest.
Foucault's argument is not persuasive
and betrays his socialist leanings. Early
in its history, it was recognized
that
the
prison did not reduce crime or
rehabilitate criminals. And while it might
be argued
that
all criminal laws reflect
the political and philosophical values in
society, it does not follow that
punishment and prisons are simply the
means employed by the upper classes to
reduce the political power of the lower.
Socialist writers generally are effective in
pointing out social ills, but are unrealistic
in analysing causes and proscribing
cures.
Despite disagreements, this is a useful
study of the transition of punishment
from brutal medieval tortures to today's
sterile system of individualized treatment
of the criminal. In a time when the field of
corrections is under both public and
professional scrutiny, this is a book
whose conclusions must be reckoned
with. DANIEL P. KING
ALEGAL QUESTION
SIR
RICHARD
EGGLESTON"
Evidence.
Proof
and Probability"
Weidenfeld &Nicholson. £8.00 paperback £4.50.
This is an interesting, although not
entirely successful book, dealing with the
rules governing the proof of issues in
legal proceedings.
It is claimed to be the first book 'to
describe systematically the central part
played by probabilities in the legal
process'. This is accurate only to the
extent
that
Sir Richard's book, unlike
others, deals in detail with mathematical
calculations involved in the assessment
of chances. In fact, all works dealing with
evidence are concerned to a large extent
with probabilities, even although the
term may not be used very frequently,
It
may be
that
an emphasis on terminology
leads to confusion. As is explained in
Chapter 3 the word probable is used in
ordinary speech to indicate something
which is more likely than not whereas
scientists think in terms of degrees of
probability ranging from the extremely
unlikely to the near certain. This may
account
for
an
extraordinary
observation to be found at page 3 in the
Introduction where, in quoting from a
criticism of observations made by Sir
Gordon
Willmer
in
Mitchell
v
Mulholland. it issuggested
thata
layman
would find the judge's proposition
that
chances are different from probabilities
remarkable. In fact, the opposite is the
case. The ordinary person, using the term
207
probable in its ordinary every day sense
might regard it as probable
that
a horse
of the calibre of Red Rum would end up
among the leaders of a race. The same
person might recognise
that
the 100 to I
outsider Blogg's Nag had a chance of
winning but he would not consider this to
be a probability.
The fundamental point is
that
actuarial calculations are likely
to
be
useful only in certain aspects of the work
of Courts and tribunals, as for example
the
assessment
of
damages
or
compensation for loss of expectation of
life or future earnings. Little is to be
gained by a
Court
considering the
'probability' of there being heavy snow
on a low lying road in Southern England
during the last week in May if it is dealing
with an accident which happened on such
a road at such a time when there is
abundant
evidence that the road was in
fact covered by at least six inches of
snow. These aspects of the problem are
dealt with in the book but not, perhaps,
as clearly as they should be.
Any police officer interested in
evidence will find this work of great
interest but he is not likely to gain much
from it except from the chapters dealing
with the rules of evidence as such.
COLIN
STAPLES
April 1979
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