Call McGarr Solicitors on: 01 6351580

Home » Blog » Environmental Law


What does it mean to make a mistake?

To make a mistake is to be wrong. Luckily, there’s a book on that. I recommend that book; in fact it’s some time since I read it and it’s time to read it again.

However, being wrong is not the subject of this post. There is a sub-set of being wrong; it is to be ignorant. So, the re-formulated question is; what does it mean to be ignorant?

It means you are normal. It is a normal part of the human condition. It is a mistake not to acknowledge this. (Another mistake!).

These are not mysteries; we refer to our mistakes as “a big mistake” or “a small mistake”. So we know that the quality of a mistake is important and, in the case of ignorance, that some aspects of ignorance are more significant than others. Ignorance can have qualities; it can be culpable, it can be innocent, it can be incorrigible. There have been very many instances recorded of ignorance. Take the medicinal use of leeches, for instance.

A leech is a blood-sucking worm. For at least 2,500 years, leeches were used by medical doctors to treat illness. This was based on a theory of human health that envisaged the necessity of relieving a patient of blood to restore health.

That theory was wrong and the beliefs of the doctors were false. The significance of this mistake is that it occurred in the equivalent of somebody’s study or schoolroom. It did not take place “in the field”, so to speak. The person who started the error had made a theoretical error. We know that the error was powerful; it captured the minds of every learned person into modern times and its correction had very powerful effects. To remember and record this erroneous belief is valuable.

The ancient theory of human health was well-meant. It aspired to be a comprehensive response to a persistent problem – human illness. In that sense, it was a good mistake. It was a pity it lasted so long.

Lawyers, or some of them, know all about mistakes like this. Just think about what lawyers say about evidence; there is always room for more of it. They say this obliquely, when they say that something is proved on the balance of probabilities or proved beyond a reasonable doubt.

These are scandalous standards. They imply absence of evidence and a shocking readiness to act in its absence.

But, like the use of leeches, these standards are well-meant, as long as we remember that they are provisional in use.

What does this mean?

It means that some decisions need more evidence than others. One of those decisions is the decision to judicially kill someone. In Europe it has been decided that we never have enough evidence to do that. In Ireland, it was decided that the use of nuclear power to meet Ireland’s energy needs was wrong; Dessie O’Malley’s policy to put a power station in Wexford was abandoned.

At that time, it could have been said that his opponents lacked evidence for their position, but that is exactly the point that lawyers are making with their scandalous standards. There is almost always evidence missing. Even scientists, who generally think they are working to a standard of “no doubt”, are actually working to a mere approximation of the truth.

What is of the greatest importance is to recognise that some decisions are qualitatively different to others.

Take fracking, for instance. This is a method of recovering natural gas from shale. It was developed by Halliburton, a US company that featured centrally in the Deepwater Horizon oil spill in the Gulf of Mexico.

Relatively speaking, very little is known of the effects of fracking. However, there are indications that it is, potentially and actually, a serious contributor to global warming. The gas in the shale is methane gas. It is a “greenhouse” gas; it promotes global warming. Fracking breaks the shale and releases the gas into the crevices and cavities of the shale. The gas is then free to find its way to the surface of the earth, possibly along the exploration channel and possibly elsewhere.

There is considerable evidence that fracking is a source of pollution, especially to water supplies. But that is not the real point.

The point is that fracking is an unknown quantity in its effects and that some, at least, of those effects could be catastrophic.

When a catastrophe will result if you are wrong, it behoves you to avoid doing anything that might precipitate the catastrophe.

Lawyers have a solution to such cases; the burden of proof (that fracking is harmless) should lie on the proponents of fracking, not on its opponents (that fracking is harmful) and we should not forget; absence of evidence is not evidence of absence.