A Good Enough (Meta) Theory of Evidence in Law: An Inferentialist Account

Abstract

The chapter explores the meta-theoretical possibilities of a good theory of evidence in law in order to explain how it is possible to think of bridging the detached accounts of knowledge and of law in the field of legal evidence. Section 1 is a critical discussion of detachment between theories of legal evidence and those of law and looks into factors responsible for this detachment. Among those factors, the alleged dualism of ‘facts’ and ‘norms’ and ambiguities about judges’ epistemological theories are examined, concluding that there is no strictly nonnormative realm and that a normative metalanguage could be employed to specify both what happens and what is done. Section 2 focuses on the preconditions of a good-enough legal evidence theory which both accounts for acquiring knowledge and is compatible with one’s theory of law. Drawing on how foundationalism, externalism, internalism, coherentism and reliabilism bear on accounts of knowledge and law, a shift of focus with regard to epistemological theories is advanced: instead of (or alongside) thinking of epistemological accounts as accounts of knowledge, one can think of them as accounts of when it is proper to attribute knowledge. Likewise, if the gap between the detached theories is to be bridged, a perspective on law which is sensitive to the problems shared by the accounts of law and knowledge is sought and found in Robert Brandom’s inferential pragmatism. This theory is particularly useful to any account that intends to make sense of both our thoughts and actions (i.e. our cognitive and practical commitments). Section 2 closes with an exposition of the inferentialist account of law. Section 3 explains how the detached accounts of knowledge and law in the field of legal evidence can be brought together, following the common inferentialist lines connecting the pragmatist models of our cognitive activities of legal discursive practices. Finally, the legal syllogism is used as a test site for putting these ideas to work and is reinterpreted as a shortcut for the social route from legal reasoning to representing legal evidence. Following inferentialist lines, Sect. 3 shows how legal syllogism holds within nine implicit moves in the legal game of giving and asking for reasons. Each of these moves is made of commitments capable of serving both as premises and as conclusions of inferences relating it to other commitments and of related entitlements. Each of these moves is also inferentially connected with any other one and offers means for eliminating incompatibilities.