When he’s not writing bestselling books, Vincent Bugliosi is a legendary prosecuting attorney. As such, he is certainly well acquainted with the legal policy of presumption of innocence. His newest book, Divinity of Doubt, a treatise on agnosticism, would have been much better if Bugliosi had taken this principle into account in the context of his arguments for, and against, God.
After all, presumption of innocence represents a decision about how to behave in the face of a certain kind of uncertainty. And agnosticism—at least in any interesting sense of the word—is more than just an acknowledgment of uncertainty about God’s existence. It is a decision about how to respond in the face of that uncertainty.
But, despite his promise to contribute something truly new to the God debates, Bugliosi treats agnosticism as nothing more than the recognition that when it comes to God’s existence, we just don’t know.
One hardly needs a book to demonstrate that no one has a knock-down argument for—or against—God’s existence. In reflecting on the ultimate nature of reality we’re dealing with mysteries that transcend our grasp. Or as theologian John Hick says, “the true character of the universe does not force itself upon us, and we are left with an important element of freedom and responsibility in our response to it.”
Most people in the pews would concede this point straightaway—which is why they are inclined to use the language of faith rather than knowledge to describe their religious convictions.
The real question is what to do in the face of uncertainty. Can it be legitimate, as I have argued, to choose to live as if a hoped-for possibility is true? Or does the uncertainty of the situation compel us to make a different choice?
A Verdict of “We Don’t Know”
Here is where I think a practicing attorney like Bugliosi should have ample resources for critical reflection. After all, not every court case leads to certainty about the truth; and yet courts do need to reach a decision. This is especially true in criminal law, where Bugliosi is a star. In criminal proceedings, if—after a sustained effort to draw a conclusion based on the evidence—we remain uncertain about the guilt of the accused, the justice system operates as if the accused is innocent. In our court system, we need to be sure “beyond a reasonable doubt.”
We might, as a society, have adopted a different policy. Not only might we have adopted a policy of presuming guilt, but we might very well have given juries a third option in their deliberations. We might have allowed a verdict of “we don’t know.”
After all, it’s simply not true that we have to treat people as guilty or as innocent. While someone is on trial, we treat them differently from everyone else (we don’t put just anyone through criminal trials, or require them to post bond in order to walk free on the streets). We also treat them differently from those who are convicted (whom we don’t let out on bail).
We might decide to let this status as “accused” persist indefinitely, as a response to a jury verdict of “I don’t know.” Instead of being convicted or acquitted, the accused might be “out on bail” until further notice, expected to return to court at any time for a new trial, pending new evidence. The cloud of accusation, and the threat of incarceration, might be allowed to hang over them indefinitely.
But hung juries aside, there are reasons why we don’t do that. In the face of uncertainty, we think it is better to err on the side of letting the guilty go free than on the side of shattering the lives of the innocent. And so, even if we’re pretty confident of a person’s guilt, reasonable doubt is enough to set them free.
Or at least that’s how things work in the context of the criminal justice system. On a more personal level, the presumption may well go the other way. Suppose the accused is your Uncle Jack. And suppose the crime he is accused of is child molestation. In the face of uncertainty—in the face of the prosecution being unable to establish Jack’s guilt beyond a reasonable doubt—he is acquitted. But the evidence against him isn’t trivial. Do you let him take your children to the park?
Probably not. Because as a parent you have a responsibility to protect your children. And in the face of uncertainty about Jack’s guilt, that parental responsibility is best carried out by treating Jack as a threat.
Jack’s neighbors who don’t have kids might have the luxury of adopting a third perspective, presuming neither innocence nor guilt. Put simply, in the face of this sort of uncertainty, it seems appropriate for the courts to behave as disbelievers in Jack’s guilt, for parents to behave as believers, and for others to behave as agnostics. On a day-to-day level, uncertainty does not necessarily imply agnosticism—at least if agnosticism is conceived as more than just theoretical uncertainty, but is taken to involve an affirmative life-stance.
Agnosticism Deserves Better
As such, a rigorous defense of agnosticism would have to take on arguments of the sort developed by Anthony Flew, who (before apparently becoming a deist in his dotage) wrote a number of important philosophical papers on atheism. One of the most significant is “The Presumption of Atheism,” in which Flew argues that in the absence of compelling evidence for the existence of God, the default presumption should be atheism. Flew even invokes the criminal court metaphor, arguing that context matters. When we are inquiring into an existential claim, Flew says, we proceed most fruitfully when we presume nonexistence until evidence for existence becomes sufficiently strong. In that context, then, we should presume atheism.
Does Bugliosi wrestle with this kind of argument? No.
A rigorous defense of agnosticism should also take on those who, like philosopher Søren Kierkegaard, argue that the stance of skeptical inquiry into God’s existence favored by Flew is inadequate when it comes to a questions of such staggering significance as whether or not there is a God.
Kierkegaard takes as his starting point the fact that we will never have certainty when it comes to the question of God, and that approaching this question as one in which we should gather and evaluate the evidence would mean putting off for our whole lives the fundamental existential choice about what kind of life we are going to live.
For Kierkegaard, the most important fact about us is that we are subjects who are related to the universe in one way or another. The choice between theism and atheism is a choice about the orientation and character of that subjective relationship. If we put off a decision until the evidence comes in—given that it never will—what we are doing is forever refusing to be what we essentially are: a subject who stands in a passional relationship with the universe.
To be true to ourselves, in the face of irresolvable uncertainty, we need to take “a leap of faith.”
From this Kierkegaardian perspective, Bertrand Russell’s “confident despair” in the face of a universe that he was sure was wholly indifferent to human aspirations—or Walter Stace’s “Man Against Darkness” confrontation of a meaningless universe—are better than agnosticism. They are truer, because they involve being what we truly are: subjects who are related to the universe in a passionate way.
Or as Yann Martel puts it in his novel Life of Pi:
I can well imagine an atheist’s last words: “White, white! L-L-Love! My God!”—and the deathbed leap of faith. Whereas the agnostic, if he stays true to his reasonable self, if he stays beholden to dry, yeastless factuality, might try to explain the warm light bathing him by saying, “Possibly a f-f-failing oxygenation of the b-b-brain,” and, to the very end, lack imagination and miss the better story.
Atheists and theists make the passionate leap, but agnostics refuse, and in so doing miss out on a crucial element of life.
Or what about William James’ impassioned response to William Kingdon Clifford’s evidentialism? James argues that some questions—such as whether this person will be a good spouse and life partner—can only be answered when we take the risk of first believing that the answer is yes. Doing so carries the risk of error, but refusal carries the risk of losing out on a truth of great value.
James thinks this is exactly the situation we are in when we confront the religious hypothesis: the notion that there is more to reality than meets the eye, and that establishing a relationship with this greater reality is one of the most profound goods of life. And so James concludes,
I, therefore, for one, cannot see my way to accepting the agnostic rules for truth-seeking, or willfully agree to keep my willing nature out of the game. I cannot do so for this plain reason, that a rule of thinking which would absolutely prevent me from acknowledging certain kinds of truth if those kinds of truth were really there, would be an irrational rule.
Does Bugliosi wrestle with these kinds of argument? No. The closest he comes is to offer a brief reiteration of Sam Harris’ basis for condemning faith—an argument that is hardly the last word on the subject.
As a substantive defense of the agnostic posture towards ultimate reality, Bugliosi’s book falls fatally short precisely because he fails even to address the most significant challenges to such a posture. Agnosticism deserves better.
So what do we get in Bugliosi’s new book? Among other things, we get a populist disdain for academic theology (for example, he quotes a bit of admittedly jargon-laden Trinitarian theology out of context, and concludes with the single word “Unbelievable” as if that were a refutation). We get an energetic argument for a view that very few philosophers of religion today, theists or atheists, take very seriously—without considering the reason why it isn’t taken seriously. I’m referring to the view that the existence of a God who is both omnipotent and wholly good is logically incompatible with the existence of evil (as opposed to the view that those evils are evidence that there is no God of this sort, which is a view that many take very seriously indeed).
We get a vigorous attack on Dawkins’ main argument against theism—in which Bugliosi gets Dawkins’ argument wrong. We get a passable (but hardly new) critique of intelligent design theory, paired with an unclear defense of the first cause argument in response to one of the more common objections raised against it.
We get what I can only describe as an embarrassing critical discussion of the evolutionary account of the origins of complex life, in which the most charitable thing to say is that it seems as if Bugliosi conceives of evolution in Lamarckian terms. We get an impassioned attack on unsophisticated versions of Christian doctrine, with no apparent awareness of more refined positions. We find a fairly conventional list (with mocking commentary) of the more implausible claims, apparent contradictions, and moral horrors attributed to God in Scripture (paired with the unquestioned but inaccurate assumption that to be a Christian or Jew is to be a biblical inerrantist).
We find a lively roasting of the “silly” Roman Catholic Church, and a heart-felt, at times almost poetic, meditation on the awfulness of death (and by implication the wickedness of a God who could ordain it). And, last but not least, we get an utterly charming and, indeed, endearing account of Bugliosi’s relationship with his late, beloved cat, whom he calls “the egg.”
At the end of it all, no one with substantive background in theology or philosophy of religion (and I suspect few lay readers who have been following the recent God debates with care) will come away from Bugliosi’s book confronted with arguments they haven’t encountered elsewhere, typically in a more philosophically powerful form. And, for reasons already mentioned, the more interesting and important issues about agnosticism are essentially absent from the book.
But readers of Bugliosi’s book will, I suspect, come away kind of liking the guy. His authorial voice is lively and engaging, and it becomes quickly clear that here is a person who lives with gusto and passion—so much passion, in fact, that he is more than willing to tackle subjects that enliven him even when he is an amateur in the field, exulting in breaking new ground (even if it is only new to him). And if this is right, then Bugliosi succeeds—by example if not by any substantive arguments—in challenging the Kierkegaardian notion that agnosticism springs from a failure to care enough about the human condition to dare to live in faith. Bugliosi can hardly be described as a slave to a “dry, yeastless factuality.”
Then again, maybe he is simply exemplifying Kierkegaard’s point that to live with the passion that a fully human life requires, one must sometimes be willing to leap in where one doesn’t know very much.