In this episode, we explore why and when we need to be more cautious about our quest for definitions
Over the past few days, there’s been a confirmation-review in the US Congress of a candidate for US Supreme Court. There’s a lot of politics around it, of course, which I’m not going to discuss here: that kind of detail is not particularly relevant for our purposes, and it’s a different country than the one that I live in, so that part of it is none of my business, anyway.
What is relevant here, though, was that one of the reviewers asked the candidate to give a definition for the word ‘woman’. Sounds like an easy question to answer, right? - I mean, it’s obvious, isn’t it? And yet the candidate’s response was something like “I can’t do that, I’m not a biologist”.
What? How stupid is that? That was the kind of commentary that came out from some of the TV chat-shows, anyway.
Yet the short-answer is no, it’s not stupid at all - in fact, for that context, “I can’t, I’m not a biologist” is the only right answer. For a judge, at least.
What’s going on here?
The real point is there are two different types of definition in play. The first type is a simple surface-level definition that’s good enough for everyday needs, such as the classic simple binary - only two options, pick one, that’s it:
The great advantage of that kind of two-way-choice definition is that we don’t have to think. It’s good enough to support a quick decision, which means we can move fast.
The catch is that the real-world is rarely that simple. A simplistic surface-level definition may be good enough for most purposes, but not for all - and that distinction is important. It’s probable that every type of context has its oddities, its nuances, its edge-cases and special-cases - and that’s the kind of world that a judge lives in. A world where judgement is needed, to ensure that things won’t go very badly wrong around those edge-cases that don’t fit the assumed norm.
To illustrate this, let’s pick up on that demand for a definition of ‘woman’. Sure, there are plenty of simple-seeming definitions: for example, one talk-show host chose the presence of a womb as his definition: if the person has a womb, it’s a woman. Yet even that definition runs into trouble straight away: for example, if that person later has a hysterectomy, do they suddenly cease to be a woman?
What about chromosomes? - you know, that an XX chromosome-pairing means it’s a woman, an XY-pairing means it’s man? Can’t we use that as a definition? - after all, that’s a straightforward binary, isn’t it? Actually, no, it isn’t, and we can’t: it’s not accurate enough for the real-world. Okay, yes, it’s true that XX and XY are by far the most common chromosome-combinations, so, yes, we can sort-of use that as a general guideline - yet only as a guideline, and not as a definition. That’s because in humans there can be all manner of other if rarer chromosome-combinations, such as XXX or trisomy (around one per thousand); XXY or Klinefelter’s syndrome (around two per thousand); XYY or Jacob’s syndrome (around one per thousand); XXYY syndrome; XXXY syndrome; and more, and more, and more.
What about genitalia, or ability to reproduce? - can’t we use those as a definition? Well, again, no - another huge range of variances there. Some are related to the rarer chromosome-types as above, but there are also all of those on the intersex spectrum, from fully asexual (‘neuter’ or ‘congenital eunuch’) to literally-bisexual (‘hermaphrodite’). Again rare, but definitely do exist - and too often the unwilling cause of all manner of legal complications when parents or others try to force-fit them into some supposed ‘standard’ sex-type.
Okay, what about breastfeeding - I mean, only women can do that, right? Surely we can use that as a definition? Yet again, the answer turns out be no: some women can’t produce milk, some men can and do (though admittedly the latter are very rare and usually only under emergency conditions). So no, as an absolute distinction, that doesn’t work either.
What about the earlier end of the lifecycle? - for example, at what point does a girl become a woman? What’s the difference? In what ways would those distinctions change the definition of ‘woman’?
And then all of that, of course, is before we get into any of the tangled mess of arbitrary, untested assumptions around sexual-orientation and gender-identity and transgender and all of that stuff.
In short, it’s a lot more complicated than it looks…
Simple definitions are fine (probably) if we’re only dealing with the easy and uncomplicated bits of the real-world, or if we’re not really dealing with the real-world at all. But if we are dealing with anything more than that - anything that has nuances, uncertainties, edge-cases and so on, or basically anything that involves actual people - then no, that kind of easy untested-assumption-based thing just isn’t going to be good enough. We’re going to need a judge.
Or, in our own case, our own context, we’re going to need to be a judge.
So how do we do that?
The first challenge, perhaps, is that making decisions costs energy - and by definition, that’s a kind of work. So if the culture is built around a dysfunctional definition of ‘power is the ability to avoid work’, then almost everyone is going to be running around trying to avoid having to do any actual thinking, because it’s work. They’ll either be looking for simplistic definitions that don’t actually work in the real-world, or finding ways to blame anyone who does take responsibility for decisions. (Or both, as in the case of what happened to that judge-candidate above.) Evading responsibility and blaming others is, well, just another form of paediarchy, really - ‘rule by, for and on behalf of the most childish’ and all that. And that’s something that we must address before we try to tackle the decision itself: leaving any form of paediarchy unchallenged is definitely Not A Good Idea…
Assuming that that problem is out of the way, then the next focus is on the role of ‘the judge’ - and that role is to identify when the simplistic definitions are good enough for the respective decision-making task; when those definitions are not good enough; and if the latter, how to deal with the nuances and special-cases and edge-conditions and other bits that don’t fit the simple definitions.
In our work on this, one of the things we rely on is a simple three-part checklist, often nicknamed ‘the architect’s mantra’: I don’t know’, ‘It depends’, and ‘Just enough detail’
On ‘I don’t know’, the first task is to accept that we may not know - in other words, that we can’t simply assume that we already know if there’s any significant chance that we don’t actually know. Given that, we then need to challenge our assumptions - we need to intentionally search for oddities, edge-cases, or anything else that might not fit. Likewise, to ask around for others who can help us in that self-challenge, and perhaps to help us find alternate ways of knowing when we don’t actually know.
On ‘It depends’, this task should be relatively straightforward: identify everything relevant that the decision depends on, and in turn anything might depend on that decision, and then assess what each of these dependencies would imply. Again, we need to watch out for the ‘I don’t know’ trap, where we assume we know what all of them are but actually don’t; and we also need to keep the right balance of detail - ‘just enough detail’, not too little, not too much.
On ‘Just enough detail’, this is often the hardest task of the three. It’s a classic Goldilocks challenge: if we don’t gather enough detail to guide the decision appropriately, then we risk missing important nuances and the like; but if we try to gather every possible detail, we risk getting trapped in analysis-paralysis. It can be a delicate balance: getting it right is something that takes practice and, again, judgement.
Rules, laws, definitions and other prepackaged decisions are good enough for when and where the world stays simple. But when it doesn’t stay simple, then we’re going to need to judge that decision for ourselves - and to judge when we need to make that judgement, too - rather than always offloading the work onto others to do the decision for us. As the world becomes ever more complex and uncertain, we’ll all need to become a lot better at being the judge.
Just a pity that the candidate did not question the relevance of the question to the proceedings. I feel that would have left the reviewer clutching at straws. Oh well.
Hi Tom, thought provoking article, my immediate thought was that the question brought into focus the inability of the reviewer to understand the topic at hand. Would the Judge be expected to know such an answer or would she expect the advocate to provide expertise to the supreme court as part of their case, then based on submissions provide judgement.
Prevalent in modern day interviews is the fact that most panels are made up of people who have no idea of the subject matter at hand, and feel obliged to ask a question relevant or not to the post in question to justify their existence as a panel member.
As per your article would the judge be expected to have prior knowledge of chromosomes or rely on expert testimony?